People ex rel. Morgan County Department of Human Services

93 P.3d 589, 2004 Colo. App. LEXIS 617
CourtColorado Court of Appeals
DecidedApril 22, 2004
DocketNo. 03CA0809
StatusPublished
Cited by5 cases

This text of 93 P.3d 589 (People ex rel. Morgan County Department of Human Services) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. Morgan County Department of Human Services, 93 P.3d 589, 2004 Colo. App. LEXIS 617 (Colo. Ct. App. 2004).

Opinion

Opinion by

Judge MARQUEZ.

In this involuntary guardianship proceeding, Leo M. Yeager, an incapacitated person who died during the pendency of this appeal, through his attorney, appealed the order holding that Yeager’s guardian, the Morgan County Department of Human Services (MCDHS), is a person for purposes of § 15-18.6-101, et seq., C.R.S.2003 (article 18.6), and authorizing MCDHS to execute a “do not resuscitate” (DNR) order on Yeager’s behalf. We affirm.

The parties stipulated to the relevant facts. Yeager, born June 6, 1924, was without any known relatives, friends, or acquaintances and suffered from numerous medical and mental health conditions. In February 1998, the trial court appointed a visitor and a guardian ad litem (GAL) for Yeager. The following month, it determined Yeager to be legally incapacitated and appointed MCDHS to be his guardian. The order required MCDHS to involve the trial court in any extraordinary medical actions, including “no CORE [no cardiopulmonary resuscitation] or no CODE orders.”

In January 2002, MCDHS filed a motion for a DNR order with respect to Yeager. The court appointed independent counsel for Yeager. Counsel, together with the parties, stipulated that Yeager suffered from advanced dementia, congestive heart failure, chronic obstructive pulmonary disease, and anemia. At hearings in August 2002 and March 2003, Yeager, his attorney, the GAL, and MCDHS representatives were all present.

The only witness at the March 2003 hearing was Yeager’s personal physician. He testified as to Yeager’s medical prognosis both with and without cardiopulmonary resuscitation (CPR). In addition, the trial court admitted a letter by the physician outlining his reasons for supporting the execution of a DNR order and a medical journal article discussing the ethics of CPR.

According to the physician, the likelihood of resuscitating Yeager would be approximately one out of a hundred. Even if resuscitation were successful, it was highly likely that he would be worse off after resuscitation. Resuscitation would likely cause injuries such as rib fractures and pneumothorax. His prognosis would worsen, his existing medical conditions would be exacerbated, and his life expectancy would be minimal. Yeag[592]*592er’s physician concluded that attempting resuscitation would be futile, cruel, and unethical.

Following the March 2003 hearing, the court found by clear and convincing evidence that Yeager lacked sufficient understanding or capacity to communicate responsible decisions concerning his person or to make financial or medical decisions. The court noted the physician’s observations that Yeager’s condition continued to deteriorate, that he had severe dementia, and that CPR was contraindicated. It found that Yeager presently had severe dementia, Alzheimer’s, chronic obstructive pulmonary disease, hypothyroidism, osteoarthritis, valvular heart disease, pulmonary hypertension, stenosis, and gas-troesophagial reflux disease. The court modified the original order appointing MCDHS as guardian to allow MCDHS “unlimited authority to approve and consent to medical decisions for Mr. Yeager, including but not limited to authority to enter DNR directives and orders on behalf of Mr. Yeager.” That modified order is the subject of this appeal.

I. Mootness

In September 2003, during the pen-dency of this appeal, Yeager passed away, and Yeager’s attorney continues this appeal of the same issues on Yeager’s behalf. We requested briefs from the parties on whether this appeal is now moot. Both MCDHS and Yeager’s attorney have responded, asserting that the appeal is not moot. We agree.

A case is moot when the relief sought, if granted, would have no practical legal effect. See State Bd. of Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959 (Colo.1997); Carney v. Civil Serv. Comm’n, 30 P.3d 861 (Colo.App.2001). When issues presented in litigation become moot because of subsequent events, an appellate court will decline to render an opinion on the merits of an appeal. State Bd. of Chiropractic Exam’rs v. Stjernholm, supra; Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424 (Colo.1990).

Here, both MCDHS and Yeager’s attorney direct our attention to the two exceptions to the mootness doctrine: (1) the court may resolve an otherwise moot case if the matter is one that is capable of repetition yet evading review; and (2) the court may hear a moot case involving issues of great public importance or recurring constitutional violation. State Bd. of Chiropractic Exam’rs v. Stjernholm, supra; Carney v. Civil Serv. Comm’n, supra. We conclude that both exceptions apply here.

Early in this action, evidence was presented that no medical situation called for an immediate decision as to resuscitation, but that the DNR order was sought in preparation for future exigencies. Yeager’s attorney, MCDHS, and the GAL all agreed at the hearing that entry of a DNR order for an incapacitated adult implicates a fundamental right.

While we recognize that situations may arise in which DNR orders are sought for incapacitated persons with longer life expectancies, future cases involving incapacitated persons with shorter life expectancies also could occur and would evade review. Further, appellate courts in this state have not addressed the issues raised here: (1) whether an independent court-appointed attorney has authority to pursue an appeal on behalf of an incapacitated person; (2) whether a county department of human services is a person under article 18.6 and has the authority to seek a DNR order; and (3) whether § 15-18.5-103(8), C.R.S.2003, limits a governmental entity’s authority to seek a DNR order. We view these issues as involving matters of great public importance and conclude that the appeal is not moot.

II. Authority of Yeager’s Counsel

MCDHS contends that Yeager did not give his independent court-appointed attorney authority to file an appeal and that the GAL has the sole discretion to file an appeal on Yeager’s behalf. Therefore, according to MCDHS, this appeal should be dismissed. We are not persuaded.

C.R.C.P. 17(c) provides:

Whenever an ... incompetent person has a representative, such as a general guardian, conservator, or other like fiduciary, the representative may sue or defend on [593]*593behalf of the ... incompetent person. If ... such representative fails to act, he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an ... incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the ... incompetent person....

The court possesses broad discretion to appoint an attorney for an incapacitated person if it determines the person’s rights and interests cannot otherwise be adequately protected or represented. Dep’t of Insts. v. Carothers, 821 P.2d 891 (Colo.App.1991), aff'd,

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Bluebook (online)
93 P.3d 589, 2004 Colo. App. LEXIS 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-morgan-county-department-of-human-services-coloctapp-2004.