The New Hampshire Supreme Court, in In Re Guardianship of L.N., determined that a New Hampshire guardian of the person has the power to terminate life-sustaining treatment and life support, in appropriate circumstances, without court approval.
The Facts of The Case
L.N. suffered a massive stroke. Thereafter, L.N. remained in the hospital on a ventilator to assist with breathing and a nasal-gastric tube for nutrition and hydration. However, there was no one with authority to act with respect to her care, and no evidence that L.N. had executed a living will or a durable power of attorney for healthcare.
Guardianship petitions were filed. L.N. was found incapacitated after hearing and her friend, M.C., was appointed guardian of the person and estate. In the order appointing, the court deferred ruling on whether the guardian should be granted authority to terminate L.N.’s life support, and expressly stated that the guardian did not have the authority to terminate life support under New Hampshire law.
A subsequent hearing was held on the authority to terminate life support. The evidence presented and opinions of medical professionals were offered as follows:
- L.N. was not showing any signs of higher cortical functions, awareness, and did not have any realistic possibility of a meaningful recovery.
- The most positive outcome for L.N. would be a persistent vegetative state.
- L.N. could spontaneously blink, open her eyes, and grimace, but was not reacting to her environment or communicating at even the most basic level.
- Damage to L.N.’s brain was irreversible.
- The hospital neurologists agreed that L.N. had a very poor prognosis for neurologic recovery.
The New Hampshire probate court ruled that the authority granted by statute to a guardian over the person “does not include the authority to remove a ward from life support without Court approval.” The court stayed the decision regarding the guardian’s authorization to remove life support.
The next month, the New Hampshire probate court issued a further order on the motion to authorize removal of life support. As summarized by the New Hampshire Supreme Court:
The court first “presume[d] that [L.N.] would have directed her healthcare providers to provide her with resuscitation, hydration and nutrition to a degree sufficient to sustain her life, subject to scenarios where the presumption would not apply.” The court then found that “it has not been shown by clear and convincing evidence that [L.N.] would have rejected artificial nutrition and hydration and resuscitation. It has also not been shown by clear and convincing evidence that [L.N.] is in a permanent vegetative state or that her movements are only reflexive.” The court concluded that, “in cases of doubt, the Court must assume that the patient would choose to defend life” and did “not find that [L.N.] — under the facts in this case — would choose to have life support removed and a natural death process to occur.”
The guardian, on behalf of L.N., appealed to the New Hampshire Supreme Court.
A Guardian’s Powers Under New Hampshire Law
RSA 464-A:25 provides in relevant part:
A guardian of an incapacitated person has the following powers and duties, except as modified by order of the court:
. . . .
(d) A guardian of the person may give any necessary consent or approval to enable the ward to receive medical or other professional care, counsel, treatment, or service or may withhold consent for a specific treatment, provided, that the court has previously authorized the guardian to have this authority, which authority shall be reviewed by the court as part of its review of the guardian’s annual report. No guardian may give consent for psychosurgery, electro-convulsive therapy, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the probate court.
Here, L.N. argues that termination of life support is not one of the four specific categories requiring prior approval by the probate court.
The New Hampshire Supreme Court narrowly defined the issue on appeal as whether the probate court’s conclusion that the statutory authority granted to a guardian over the person under RSA 464-A:25 does not include the authority to remove a ward from life support without Court approval.
Does the General Authority Of A Guardian Include The Authority To Terminate Life Support?
Yes. In the appropriate circumstances, the general authority of a guardian under RSA 464-A:25 includes the authority to terminate life support.
First, the New Hampshire Supreme Court declined to distinguish between authority regarding relatively minor and relatively major decisions. The court cited to numerous decisions from other states, stating:
Other jurisdictions have similarly interpreted general provisions in their guardianship or conservatorship statutes, particularly those empowering the guardian or conservator to make medical decisions for a ward, as empowering the guardian or conservator to withdraw life-sustaining treatment in appropriate circumstances.
Second, the Court looked to RSA 464-A:25, I(e), which provides:
If a ward has previously executed a valid living will, under RSA 137-J, a guardian shall be bound by the terms of such document, provided that the court may hold a hearing to interpret any ambiguity in such document. If a ward has previously executed a valid durable power of attorney for health care, RSA 137-J shall apply.
The court found that this language implies that the guardian has the authority to make decisions in that regard (end of life decisions) on behalf of the ward.
Is Prior Court Approval Required To Exercise A Guardian’s Power to Terminate Life Support?
No. Under the plain language of RSA 464-A:25, judicial involvement is not required. Life sustaining treatment is not one of the four categories of treatment requiring court approval. Excluding the ability to terminate life sustaining treatment indicates that the legislature did not intend to require prior approval for any other procedures not mentioned.
As other courts addressing end-of-life decision-making for incompetent patients have observed, “[c]ourts are not the proper place to resolve the agonizing personal problems that underlie [*20] these cases,” Matter of Jobes, 529 A.2d 434, 451 (N.J. 1987), and “the judicial process [is] an unresponsive and cumbersome mechanism for decisions of this nature,” Matter of Welfare of Colyer, 660 P.2d 738, 746 (Wash. 1983) (en banc); see also Matter of Guardianship of L.W., 482 N.W.2d 60, 75 (Wis. 1992) (citing Matter of Welfare of Colyer and Matter of Jobes). The Kentucky Supreme Court has concluded that “it would be logistically impossible to require court approval of every decision to withhold or withdraw life-prolonging treatment.” Woods v. Com., 142 S.W.3d 24, 49 (Ky. 2004).
What Constitutes “Appropriate Circumstances” To Terminate Life Support?
The New Hampshire Supreme Court declined to decide what standard might apply when a guardian’s decision to remove life support is challenged in court. However, the court did discuss the various approaches used by other states, specifically the substituted judgment approach, a best interests approach, or some combination of the two.
Substituted Judgment
Under the substituted judgment approach, a surrogate decision maker attempts to establish what decision the patient would make if the patient were competent to do so.
Best Interests Approach
Under the best interests approach, a surrogate decision maker chooses what procedures would be in the patient’s best interests.
Here, the Court noted that the established standards governing fiduciaries apply to guardians. In addition, a guardian’s authority is neither granted nor exercised without safeguards. For instance, the decision to remove life support requires implementation by medical personnel, who operate under their own set of legal, as well as professional and ethical, constraints.
The Court concluded that the general power granted to the guardian by statute includes the power to terminate life support and life-sustaining treatment, in appropriate circumstances, without court approval.
Accordingly, the guardian “may give any necessary consent or approval to enable [L.N.] to receive medical or other professional care, counsel, treatment, or service or may withhold consent for a specific treatment,” including life-sustaining treatment, but excluding “psychosurgery, electro-convulsive therapy, sterilization, or experimental treatment of any kind,” without prior court approval.
