In re D.E.

• Decision Date: 18 September 2020
• Docket Number: No. 2020-0368,2020-0368
• Citation: 243 A.3d 908,173 N.H. 550
• Parties: IN RE GUARDIANSHIP OF D.E.
• Court: New Hampshire Supreme Court

173 N.H. 550

243 A.3d 908

IN RE GUARDIANSHIP OF D.E.

No. 2020-0368

Supreme Court of New Hampshire.

Submitted: August 31, 2020

Opinion Issued: September 18, 2020

Elliott, Jasper, Auten, Shklar & Ranson, LLP, of Newport (Alice C. Ranson and Michael C. Shklar on the brief), for the ward.

Susan L. Regan, guardian, filed no brief.

HICKS, J.

This case is before us on an interlocutory transfer without ruling from the Circuit Court (Moran, J.) pursuant to Supreme Court Rule 9. We accept the facts as presented in the interlocutory transfer statement. See In re C.M., 163 N.H. 768, 770, 48 A.3d 942 (2012). We recite additional facts, for background only, as set forth in documents submitted in the appendix to the interlocutory transfer statement.

I. Facts

In February 2020, the 79-year-old ward was a patient at a hospital in Lebanon. At that time, the hospital filed a petition to appoint a guardian over the ward's person and estate. The hospital alleged that a guardianship was necessary because the ward "has persistent cognitive impairment due to an anoxic brain injury

and a major [neurocognitive] disorder," which "renders him unable to provide for his personal needs for health care, food, clothing, shelter and safety" or to "manage his finances or estate."

The court held a hearing in March at which only the ward's adult children were present. The ward's children testified that, in October 2019, when their father was in the intensive care unit, they executed a "Do Not Resuscitate" (DNR) order for him. The ward had no DNR order previously. When the ward's condition improved and he was transferred to a medical ward, he specifically told his children that he wanted the DNR order removed.

Based upon the evidence at the March hearing, the court found that the ward is incapacitated and that a guardianship is necessary as a means of providing for his "continuing care, supervision, and rehabilitation and for the prudent management of [his] property and financial affairs." The court further found the ward incapable of exercising several rights, including the rights to: (1) "[r]efuse or consent to medical or other professional care, counseling, treatment or service"; (2) "be admitted or discharged from any hospital or other medical institution"; (3) make a will; and (4) "grant power of attorney or other authorizations."

As a result, the court appointed a guardian, granting her the right to exercise certain rights on the ward's behalf, including the right to "determine if refusal should be made or consent should be given to any medical or other professional care, counseling, treatment or service provided." The court specifically directed the guardian to "share medical information with the ward's two children and consult with them on major medical decisions," although the court stated that "[t]he ultimate decision making authority rests with the guardian." (Bolding omitted.)

However, the court preliminarily limited the guardian's authority to execute either a DNR order or an order limiting life-sustaining treatment. The order appointing the guardian stated, in pertinent part:

Pursuant to RSA 464-A:25, II the Court finds that it is desirable for the best interest of the ward to limit the medical decision making authority of the Guardian and the Guardian's power to execute a Do Not Resuscitate (DNR) order or to execute an order limiting life-sustaining treatment. The best interest of the ward require[s] the Guardian pending further hearing to comply with and honor the specific verbal instructions given by the ward with regard to having a DNR order in place and asking for life-sustaining measures to be utilized. ... The Court therefore finds that it is desirable for the best interest of the ward to limit the Guardian's authority with regard to executing a DNR order or executing an order limiting life-sustaining treatment without further hearing. The Guardian or any party may request a further hearing on this issue.

(Emphasis added.) See RSA 464-A:25, II (2018).

In August 2020, the guardian filed a motion for expedited hearing, asking the court to remove the limitations on her authority regarding the ward's medical care. The guardian averred that the ward, who now resided in a nursing home, was in need of dialysis but had refused dialysis on July 30, August 4, and August 6, and had "not resumed his sessions." The guardian stated that it was "likely that the lack of dialysis [will] cause a systemic infection which [the ward] will not recover from." The guardian asserted that, by declining to resume dialysis, "the ward himself has decided to stop his own life sustaining treatment," and that "without having a DNR order in place and without anyone else having the ability to sign [one]," it will be "quite problematic and painful for the ward." Appended to the motion was a letter from a nurse practitioner stating:

Without dialysis[,] [the ward's] prognosis is likely measured in weeks to a month. He is at high risk for developing complications including cardiac arrest

. I would strongly recommend changing his resuscitation status to "Do Not Resuscitate." An attempt at resuscitation would undoubtedly result in increased suffering and would not change the outcome.

The expedited hearing was held on August 12 at which the ward was present. The guardian, the medical director of the ward's nursing home, the ward's attorney, and the ward's daughter testified. The guardian stated that she would respect the ward's wishes, but "feared there would be an emergency and he would have to be resuscitated." The medical director testified that, since July, the ward has refused to obtain dialysis treatment because he says "it isn't doing anything for him." The medical director stated that by refusing dialysis, the ward is refusing life-sustaining treatment, and that he believes that the ward's "expressed wishes are based on a poor and inconsistent understanding arising from a brain injury

." The medical director opined that it is in the ward's best interests for the guardian to make those decisions for the ward and for a DNR order to be in place. The medical director testified that the ward's "quality of life would be diminished if a DNR Order [were] not in place," and that the ward "would be profoundly diminished if resuscitation [were] required." The medical director opined that if the ward "wanted dialysis," then the provider "would be ok with not having a DNR Order in place."

The ward's attorney informed the court that the ward was "very clear that he did not want a DNR Order." She explained that the ward had been resuscitated before and that he "wanted it done again." In response to a question from the court, the ward stated, "Yeah. I want to be resuscitated." He also stated that he would want artificial hydration and nutrition.

The ward's daughter testified that she wanted to honor her father's wishes. She testified that in 2019, her father was resuscitated after having gone into cardiac arrest

. She further testified that, in the fall of 2019, after his children had executed a DNR order for him, the ward, his children, and his doctor discussed the DNR. The ward's daughter believes that the ward understood what was said to him. After the doctor explained what a DNR order meant, the ward stated that he did not want one. The ward's daughter further testified that she wanted life-sustaining treatment for her father.

Without ruling, the court transferred the following questions:

1. [W]here a court, under RSA 464-A:25, II, has specifically withheld authority under RSA 464-A:25, I(d) to withhold life sustaining treatment, what standard should be used to determine whether to authorize execution of a DNR by the guardian on behalf of the ward?

2. [U]pon remand, does the Probate Division or the guardian apply the appropriate standard? To put it another way, does the Court simply authorize the guardian to make the decision pursuant to a best interests/substituted judgment/other standard, or does the court apply the standard and direct the guardian whether she may or may not execute a DNR?

Based upon the procedural posture of the case, we reframe the questions as follows:

1. When, pursuant to RSA 464-A:25, II, a court has preliminarily limited a guardian's authority to withhold life-sustaining treatment pending further hearing, and then has conducted that further hearing, what standard should the court use to determine whether to reverse its initial decision?

2. Assuming that the court reverses its initial decision, what standard should the guardian use to determine whether to withhold life-sustaining treatment from the ward, including executing a DNR order on his behalf?

3. Assuming the guardian decides to withhold life-sustaining treatment from the ward, including executing a DNR order on his behalf, and there is a dispute regarding that decision, under what standard should the trial court review the guardian's decision?

4. Assuming that the court upholds its initial decision to limit the guardian's authority, who then has the authority to decide whether to withhold life-sustaining treatment from the ward, including executing a DNR order on his behalf?

As reframed, we answer the transferred questions as follows:

1. By statute, the court may not limit the guardian's authority to withhold life-sustaining treatment unless the court "deems such action desirable for the best interests of the ward." RSA 464-A:25, II.

2. Should the court decide to remove the limitation on the guardian's authority to withhold life-sustaining treatment from the ward, including executing a DNR order on his behalf, the standard governing the guardian's decision is the "best interests" standard.

3. The court reviews a guardian's decision to withhold life-sustaining treatment from a ward, including executing a DNR order on his behalf, under a deferential standard.

4. Should the court retain the current limitation on the guardian's authority to withhold life-sustaining treatment from the ward, including executing a DNR

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