Elder law & estate planning – Guardian Is Permitted To Make End Of Life Decisions

New York State Law provides that an individual must be mentally competent in order to request withdrawal or withholding of life-sustaining treatment. If an individual has become mentally incapacitated, such treatment cannot be withheld unless he/she has executed a living will or has appointed a health care proxy to make these decisions.
Most mentally retarded individuals were never capable of comprehending the nature of such decisions, and the law has recently been changed to accommodate them. Article 17A of the Surrogate Court Procedure Act was amended effective March 17, 2003, to provide standards for guardians of mentally retarded persons to make decisions regarding the withholding of life sustaining treatment.
On September 21, 2006, In Re Chantel R. was decided by the Appellate Division of the First Department. The case questioned whether Pamela R, the mother of Chantel R., a 26 year-old mentally retarded individual, should be able to make decisions concerning life-sustaining treatment as guardian of her daughter. While Chantel was able to perform her own activities of daily living, such as bathing, dressing, eating, she was unable to handle basic financial transactions. The consensus of the testimony in that matter was that Chantel was not capable of comprehending the concept of withholding medical treatment.
Section 1750-b of the Surrogate Court Procedure Act requires a finding that a mentally retarded person is incapable of making health care decisions before a guardian can be appointed with authority to withhold or withdraw life-sustaining medical care. After previous litigation involving guardians of mentally retarded individuals who were not permitted to make end of life decisions, the amendment to Article 17-A of the Surrogate Court Procedure Act allowed a guardian some latitude in determining the administration of medical treatment to someone who was never competent to make such decisions.
The Court, citing the Surrogate Court Procedure Act, affirmed the Surrogate Court's decision that appointed the mother as guardian with authority to make decisions concerning life-sustaining treatment on behalf of her daughter. The holding of the case reflects the proper application of section 1750-b of the Surrogate Court Procedure Act, thereby alleviating some of the difficulty for a guardian of a mentally retarded person confronting these difficult issues.
Of course, family members should strongly consider providing financial security for mentally and physically incapacitated individuals through the use of a Supplemental or Special Needs Trust. These trusts can provide for the supplemental needs of an incapacitated person without disqualifying him/her from public entitlements such as Medicaid and SSI.
Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, and Brooklyn, NY. Mr. Fatoullah has been named a &#8220fellow” of the National Academy of Elder Law Attorneys and is a former member of its Board of Directors. He also serves on the Executive Committee of the Elder Law Section of the New York State Bar Association. Mr. Fatoullah is a member of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys. Mr. Fatoullah is a co-founder of Senior Umbrella Network of Queens. This article was written with the assistance of Stacey Meshnick, Esq., who supervises the Medicaid Department at the firm. The firm can be reached by calling 718-261-1700, 516-466-4422 or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.
*Certified as an Elder Law Attorney by the National Elder Law Foundation