Minnesota Supreme Court will decide whether guardians can make the call on life support

The Minnesota Supreme Court will have the final say over whether guardians have the legal authority to disconnect their wards from life support.

The court’s announcement this week that it will review the case of Jeffers Tschumy will for the first time in nearly 30 years revisit an end-of-life issue that could affect many of the more than 12,000 Minnesotans under guardianship who don’t have health care directives. Its key question: Should guardians be required to receive a judge’s sign-off before pulling the plug, or is it already part of the powers granted when they sign on for the job?

The case stems from the life and death at 57 of Tschumy, a mentally disabled man who had been under guardianship since 2008. In April 2012, he choked on food, could not be revived and was declared severely brain-damaged with little hope of recovery. Tschumy had no family and no health care directive.

Allina Health System requested that a judge allow him to be removed from life support, either by clarifying that his guardian, Joseph Vogel, had the right to make the decision or by issuing an order from the bench.

District Judge Jay Quam authorized the termination of Tschumy’s life support, but denied the guardian’s request for the sole power to make that decision. Tschumy died.

In a follow-up order, Quam reasoned that although guardians have a strong case to make end-of-life decisions under a state law that grants them the power to allow or withhold medical care, it does not specifically allow them to terminate life ­support. Until the Legislature decides to revisit the issue, only a judge or legally authorized representatives can order life support removed.

“No one­­ — not even a judge — can look into the future and into the hearts and minds of a guardian to know with confidence that he or she will decide appropriately when, and if, an end-of-life decision needs to be made,” he wrote.

Attorneys for Vogel appealed. Last summer, the Minnesota Court of Appeals reversed Quam’s ruling, reasoning that the final authority lies with guardians and that end-of-life decisions shouldn’t be dictated by the court, relying on a 1984 Supreme Court ruling that said judges were permitted to allow removal of life support without a secondary hearing.

While Quam called the same law too vague, the Appeals Court countered that imposing a requirement for additional court sign-off “would be inconsistent with the Supreme Court’s recognition of a private, medically based model of decisionmaking.”

An attorney for Tschumy, Mike Biglow, asked the Supreme Court to hear the case, and was pleased when the justices agreed to review it, he said. He backs the requirement of a judge’s sign-off before guardians can authorize terminating life support, saying that “it would take very little time and effort” for such an ­important decision.

“The powers granted to a guardian are wide, but terminating life support is not specifically mentioned,” Biglow said. “There is still need for clarification.”

The Minnesota attorney general’s office, which weighed in with briefs supporting a mandatory judge’s sign-off, is expected to do so again before the Supreme Court hearing.

Minnesota law empowers guardians to give “any necessary consent to enable, or to withhold consent for, the ward to receive necessary medical or other professional care, treatment or service.” They do, however, need a judge’s consent for psychosurgery, electroshock, sterilization or experimental treatment.

The state Supreme Court’s ruling, which will be issued within three months after yet-to-be-scheduled oral arguments, will clarify just whether end-of-life powers are inherent within those powers. It’s always possible that the Legislature could clarify the law, Biglow said, but not before a decision arrives.

“The statute requires the guardian be subject to the control and direction of the court at all times and in all things,” he said. “The decision to terminate life support which results in the death of a ward should at the very least be reviewed in the light of this supervising court.”

Attribution:

Minnesota Supreme Court will decide whether guardians can make the call on life support
The Minnesota Supreme Court will determine if a judge’s sign-off will still be needed before removing end-of-life measures.
Abby Simmons
October 18, 2013
StarTribune.com
http://www.startribune.com/local/228405441.html

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