New York Case Provides Window Into Roles of Attorneys as Counsel and Guardian in End-of-Life Case
In the Matter of Jane Doe, a case pending in New York state courts for several years, involves tragic facts. A 37-year old woman experienced cardiac arrest in 2003 following complications during delivery of her third child. With a cascading series of events, “Jane Doe” suffered anoxic brain damage and spastic quadriparesis, and became dependent on a respirator and full time care in a nursing home’s ventilator unit. Her husband, John D., was initially appointed as her personal needs guardian, while a separate person, an attorney, was appointed property management guardian. In 2012, John D initiated measures to remove his wife’s life support; litigation ensued when other family members opposed the proposed withdrawal. After more than a year of proceedings, John D. stepped down as special needs guardian and in 2012, the court appointed one attorney as legal counsel for Jane Doe, and a separate attorney as the new special needs guardian with authority under New York law to determine the patient’s health care, including any decision to withdraw life supports.
In 2016, a New York Court held extensive hearings on the surrogate decision of the special needs guardian to withdraw life support for Jane Doe. The court heard testimony from medical professionals, friends and relatives of Jane Doe, including those who recounted conversations with Jane, offered to show that she would not want life sustaining measures to be withdrawn. The testimony, summarized in the opinion, is wrenching. Ultimately, on August 19, 2016, the court issued a detailed ruling, finding that the decision of the special guardian to withdraw life support was supported by the evidence. The court denied the petition of family members opposing termination of life support but also stayed its final order for 60 days to permit further appeals.
On one level, this is case is another window into the use of courts for end-of-life decision-making. But the case also highlights the important roles potentially played by lawyers for the incapacitated person, including as appointed legal counsel for the incapacitated person and separately, as the surrogate decision maker. The surrogate’s experience as an elder law attorney was viewed by the court as important to her credentials.
Here are the court’s reasons for accepting the surrogate’s decision:
Most 37 year olds like Jane Doe are unlikely to contemplate being permanently unconscious for a period of nine years and counting.Based on the evidence, the sole benefit of medical treatment for Jane Doe is to be kept metabolically alive since she has suffered extensive tissue destruction of the brain which is incompatible with any degree of recovering consciousness in the future. Thus, disability is total and no return to an even minimal level of social or human functioning is possible. . . .
The Court is also guided by Ms. Boranian, counsel for Jane Doe who does not oppose the Special Guardian’s decision. Ms. Boranian’s position is based on consultations with Dr. Posner and numerous visits with Jane Doe wherein she concluded that Jane Doe is devoid of thought, emotion and sensation, and thus, has no reasonable expectation of life.
It is important to note that while the movants contend otherwise, the Court finds that Ms. Finkel, as Special Guardian for Jane Doe, fulfilled her responsibilities as set forth in the Final Order in good faith. As a long-standing practitioner and lecturer in the area of elderlaw, Ms. Finkel’s decision to withdraw life-sustaining treatment from Jane Doe was made only after conducting a full investigation and upon careful deliberation of the results thereof. Specifically, she considered the concurring clinical opinions of not only two physicians as statutorily required, but three physicians in support of her findings under the statute. Further, she discussed her decision with Jane Doe’s immediate family, extended family, and their attorneys, and provided notice of her decision pursuant to PHL § 2994–d [5](e). In the face of resistance and hostility exhibited by some family members, Ms. Finkel remained committed to enforce the clear intent of the FHCDA, which is that surrogate decision-making shall be patient centered’. Accordingly, in reviewing the record in this tremendously sensitive and difficult matter, the Court is satisfied that the Special Guardian complied with the statutory criteria set forth in PHL §§ 2994–d [4] and [5].
I can only imagine how difficult those roles must be for even the most experienced of attorneys.