What is a Special Medical Guardian?

Under New Jersey law, the Superior Court may determine the incapacity of an alleged incapacitated person and appoint a guardian for the person, guardian for the estate or a guardian for the person and estate.  N.J.S.A. § 3B:12-25.  As one can imagine, the court does not take the granting of an order instituting a guardianship lightly as the court is essentially stripping someone of their rights.

In re Farrell, 212 N.J. super 294 (1986), aff'd, 108 N.J. 335 (1987), Kathleen Farrell was a 37 year old married mother of two.  She married Francis Farrell on June 28, 1969. The family lived in a modest home in South Toms River. Prior to 1982 Mrs. Farrell worked for four years as a key punch operator. She began to have trouble with her hand and arm and had to stop working when her condition was tentatively diagnosed as amyotrophic lateral sclerosis, more commonly known as Lou Gehrig's disease.  Plaintiff applied to be appointed a special medical guardian for his wife, with express permission to remove a respirator, which had kept her alive for the previous three years.  Mr. Farrell petitioned the court to be appointed his wife's special medical guardian, which the court approved. The court also ordered that plaintiff and any other person involved in the removal of the respirator would be free from criminal or civil liability because the wife had sufficient mental capacity to refuse the treatment.

The general rule is that a person of the age of majority and sound mind has a right to determine what shall be done with his/her own body. More specifically, a competent adult person generally has the right to decline to have any medical treatment initiated or continued even if it means the difference between life and death. Such a right is based upon both the common law right to self determination and the federal and state constitutional rights to privacy. Although the general rule is that an adult has the right to decline life-sustaining medical treatment, such right is not absolute in some cases. It may yield to countervailing societal interests in sustaining the person's life. There are four commonly identified state interests that may limit a person's right to refuse medical treatment, namely, (1) preserving life, (2) preventing suicide, (3) safeguarding the integrity of the medical profession, and (4) protecting innocent third parties. Preserving life is generally considered the most significant of the four; this makes sense in that a goal of government should be preserving the life of its citizens. The goal of preserving life, however, needs to be balanced against the "right to die" and an analysis the court will focus on.

New Jersey does recognize the appointment of a "Special Medical Guardian." In order for the court to grant such an order, the plaintiff needs to prove four things (R 4:86-12): (1) the patient is incapacitated, unconscious, underage or otherwise unable to consent to medical treatment; (2) no general or natural guardian is immediately available who will consent to the rendering of medical treatment; (3) the prompt rendering of medical treatment is necessary in order to deal with a substantial threat to the patient's life or health; and (4) the patient has not designated a health care representative or executed a health care instruction directive pursuant to the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 to -78, determining the treatment question in issue. All four tests above must be met. In addition there must be clear and convincing evidence as to incapacity. Accordingly, a compliant filed with the court requires the affidavit of two licensed physicians.

There is certainly more to a guardianship other than what is set forth above but take note that a guardianship proceeding requires resources: financial (involvement of multiple attorneys and physicians) and emotional.  The emotional can be rough if you are dealing with family; you can't put a financial price tag on that cost.

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