Guardianship of Boyle

674 A.2d 912, 1996 Me. LEXIS 72

• Court: Supreme Judicial Court of Maine
• Decided: March 25, 1996
• Status: Published

Opinions

CLIFFORD, Justice.

These consolidated appeals arise from two separate petitions for guardianship of Susan Boyle. The Department of Human Services, Bureau of Elder and Adult Services (the Department) appeals from an April 15, 1994 judgment of the Penobscot County Probate Court (Woodcock, J.) denying its petition for guardianship of Susan. The Department contends that the court erred in concluding that Susan was not an incapacitated person. Susan appeals a September 15, 1994 judgment by the same court that granted the Department’s renewed petition for guardianship to the extent that it does not limit the guardianship by excluding the power to authorize the administration of psychotropic medication.

Susan Boyle is a forty-six-year-old woman who has suffered from mental illness for many years. She has been diagnosed as a paranoid schizophrenic. Susan has been hospitalized on an involuntary basis at the Bangor Mental Health Institute (BMHI) since November 1992 because of the likelihood that she was a danger to herself or others. See 34-B M.R.S.A. § 3864(6) (1988 & Supp. 1995).¹

The Department filed a petition in July 1993 seeking to have itself appointed temporary guardian for Susan for the limited purpose of decision making. Susan moved to limit the guardianship to exclude the power to compel her to take antipsychotic drugs. On April 15, 1994, the court, without ruling on Susan’s motion, denied the Department’s petition, concluding that Susan was not an incapacitated person. The Department appeals that judgment.

In May 1994, the Department again filed a petition for guardianship of Susan based on Susan’s asserted psychiatric deterioration that put her at the risk of assaultive behavior by other patients. Susan moved to limit guardianship to exclude powers relating to her mental and psychiatric treatment. The court concluded that Susan was an incapacitated person in need of a guardian, and granted the Department’s petition. The court denied Susan’s motion. Susan’s appeal of that judgment has been consolidated with the Department’s appeal to facilitate review by this Court.

I.

The Department challenges the April decision of the Probate Court, contending that the court’s finding that Susan was, at that time, an adult capable of giving informed consent and informed refusal to her medical and psychiatric treatment was error. We review factual decisions of the trial court for clear error. Guardianship of Collier, 653 A.2d 898, 900 (Me.1995). A factual determination is clearly erroneous only when there is no competent evidence in the record to support it. Hamm v. Hamm, 584 A.2d 59, 62 (Me.1990). It is primarily for the factfinder to assess the credibility of witnesses and to consider the weight and significance of the evidence. Tonge v. Waterville Realty Corp., 448 A.2d 902, 905 (Me.1982).

The burden of proof at the hearing was on the Department. Although there was significant evidence that would support a finding that Susan was incapacitated at that time, such a finding is not compelled because there is competent evidence to support the findings of the Probate Court. Accordingly, we must affirm the court’s April decision.

II.

Even though Susan has been treated with psychotropic drugs in the past and has responded well to them, she has refused to take such medication voluntarily since 1985. She contends that her decision to refuse psychotropic medication, made while she was determined to be competent, survives her subsequent incapacity and precludes the appointment of a guardian specifically empowered to authorize the administration of any such drugs. She argues that the court erred in its September decision granting the Department’s petition.

It is undisputed that Susan is incapacitated within the meaning of 18-A M.R.S.A. § 5-101(1) (1981)² and in need of continuing care and supervision, thus meeting the statutory criteria for the appointment of a guardian with limited powers. 18-A M.R.S.A. § 5-304(b) (Supp.1995).³ The Department was appointed as Susan’s limited guardian pursuant to 18-A M.R.S.A. § 5-601(a).⁴

Section 5-304(a) requires the Probate Court to exercise its power of appointment “to encourage the development of maximum self reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person’s actual mental and adaptive limitations or other conditions warranting the procedure.” This is precisely what the court did in the instant case. The Department’s powers are limited to administering medical and psychological care and treatment, including the power to administer psychotropic medication, if that treatment is necessary.

The evidence in this case discloses the necessity of medical and psychological treatment to protect Susan from danger to herself and others, and that the treatment is essential for her to be self-reliant and independent. If antipsychotic medication is indicated but is not administered to Susan, she is not amenable to any other treatment; her condition will deteriorate. Currently, she is delusional, thinks others wish to harm her, cannot control her temper, and lacks the judgment to protect herself from assaults. The danger to herself and others, first determined to exist when she was involuntarily committed to BMHI, will only increase the longer Susan goes without the necessary administration of psychotropic drugs. Without the properly administered medication, she will be condemned to a life of complete dependency spent in an institution. With the properly administered medication, Susan can benefit from psychotherapy, occupational and recreational therapies and other treatments, and has a reasonable chance to lead a relatively normal and independent life.

Susan contends that her previously expressed wish that she does not want anti-psychotic medications precludes the action of the Probate Court from granting to the Department the authority to administer them. She relies on the right to personal autonomy and self-determination expressed in In re Gardner, 534 A.2d 947 (Me.1987), in support of her position. We are unpersuaded by her contention. The right of personal autonomy recognized in Gardner and In re Swan, 569 A.2d 1202 (Me.1990), is not absolute and does not operate to prevent the State in a case such as this from acting to protect Susan from doing harm to herself and others.

Gardner and Swan recognize that the previously and clearly expressed wishes of a person in a permanent and irreversible vegetative state, with no hope of recovery, without control over bodily functions, and with no thought process or emotion, may serve to terminate life-sustaining medical treatment. Gardner, 534 A.2d at 954; Swan, 569 A.2d at . In both cases, the result reached by the court was concurred in by the family, the guardian, and the Department. Gardner and Swan do not speak to the circumstances present in this case. In the case before us, Susan has been involuntarily committed to a mental hospital because she presents a danger to herself and others, and the administration of psychotropic drugs may be the only treatment that can dramatically reduce that danger.

It is significant that the Legislature has not acted to restrict the authority of a guardian beyond the unique circumstances of Gardner and Swan. In 1991, the Legislature amended 18-A M.R.S.A. to codify the holdings in Gardner and Swan. The authority of guardians to authorize or withhold medical treatment is now limited only in the case of a ward who is terminally ill or in a persistent vegetative state and has directed otherwise in a living will. P.L.1991, ch. 719, § 2. It is especially noteworthy, however, that when the Legislature addressed medical treatment to be given to a person with a psychotic disorder, including antipsychotic drugs, by enacting 34-B M.R.S.A. § 11001 (Supp. 1995),⁵ it did not further amend 18-A M.R.S.A. § 5-312(a)(3) to limit the authority of a guardian with respect to medical treatment. Rather, with the exception of a ward who is terminally ill or in a persistent vegetative state (Susan is neither), the Legislature maintained in the guardian the same power to authorize medical treatment as needed for an incapacitated person as for a minor child.

The State’s interest in protecting its citizens from dangerous circumstances is substantial. The Adult Protective Services Act, 22 M.R.S.A. §§ 3470-3492 (1992 & Supp. 1995), recognizes the inability of certain of our adult population to manage their own affairs or to protect themselves from abuse, neglect, or physical danger due to an incapacity or physical disability. Id. § 3471. The Act authorizes the Department to act to protect “incapacitated and dependent adults in circumstances which present a substantial risk of abuse, neglect, or exploitation,” including petitioning for guardianship. Id. §§ 3473(1)(A), 3482. The guardian of an incapacitated person has the same powers that “a parent has respecting [the parent’s] un-emancipated minor child,” unless modified by court order. 18-A M.R.S.A. § 5-312(a). This authority includes the giving or withholding of consent or approval related to medical care. Id. § 5-312(a)(3).

Susan has been committed involuntarily to an institution because it has been determined that she is a danger to herself and others. 34r-B M.R.S.A. § 3864(6). Because she is delusional, thinks others want to harm her, and is unable to protect herself from assault, the danger to Susan so long as she remains untreated with antipsychotic medication as that treatment is indicated is real and substantial. The court properly declined to completely withhold from the Department the power to authorize, when appropriate, the treatment of Susan with psychotropic drugs essential to protect her from harm to herself and others. Its decision is consistent with the policy expressed in the statute of encouraging the development of maximum self reliance and independence. 18-A M.R.S.A. § 5-304(a).

The entry is:

Judgment of April 15,1994 affirmed.

Judgment of September 15,1994 affirmed.

1 . 34-B M.R.S.A. § 3864(6)(A) & (B) (1988 & Supp. 1995) provides:

Court findings. Procedures dealing with the District Court’s findings under this section are as follows.

A. The District Court shall so state in the record, if it finds upon completion of the hearing and consideration of the record:

(1)Clear and convincing evidence that the person is mentally ill and that the person’s recent actions and behavior demonstrate that the person’s illness poses a likelihood of serious harm;

(2) That inpatient hospitalization is the best available means for treatment of the patient; and

(3) That it is satisfied with the individual treatment plan offered by the hospital to' which the applicant seeks the patient’s invountary commitment.

B. If the District Court makes the findings described in paragraph A, subparagraphs 1 and 2, but is not satisfied with the individual treatment plan as offered, it may continue, the case for not longer than 10 days, pending reconsideration and resubmission of an individual treatment plan by the hospital.

2 . 18-A M.R.S.A. § 5-101(1) (1981) provides:

(1) "Incapacitated person” means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause except minority to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person!.]

3 . 18-A M.R.S.A. § 5-304(b) (Supp.1995) provides in pertinent part:

(b) The court may appoint a guardian as requested if it is satisfied that the person for whom a guardian is sought is incapacitated, that the appointment is necessary or desirable as a means of providing continuing care and supervision of the person of the incapacitated person....

4 .18-A M.R.S.A. § 5-601(a) (1981) provides:

(a) In any case in which a guardian or conservator may be appointed by the court under this Article, the court may appoint a public guardian or conservator as provided in this Part for persons who are mentally retarded and for incapacitated persons as defined in section 5-101, paragraph (1), who are in need of protective services.

5 . 34-B M.R.S.A. § 11001(2) (Supp.1995) allows a person with a psychotic disorder, in a written declaration made while competent and in a state of remission, to provide for medical treatment to be administered to them on a subsequent lapse into a psychotic condition. No such written declaration was made here. Section 11001(17) provides that in the absence of a written declaration, ordinary standards of current medical practice must be followed. That section also allows the treating physician to consider verbal statements of the patient.