Guardians can't end life support, judge rules

  • Article by: ABBY SIMONS , Star Tribune
  • Updated: October 18, 2012 - 9:37 PM

Wards' right-to-die cases must be decided in court, ruling says.

Guardians can't order their wards removed from life support, according to a Thursday court ruling.

More than 12,000 Minnesota residents are currently under guardianship, but the right-to-die ruling in the case of Jeffers Tschumy is the first time such an issue has been addressed in a state court.

In an 18-page order, Hennepin County District Judge Jay Quam wrote that although guardians have a strong case to make end-of-life decisions under a state law that grants them power to allow or withhold medical care, it does not specifically allow them to terminate life support. Until the state Legislature decides to revisit the issue, only a judge or legally authorized representatives can order life support removed.

"Simply stated, if the Legislature intended to give a guardian the power to end the ward's life, it would have explicitly done so." Quam wrote. "The Court does not believe that the Legislature intended a subtle inference in a statute to bestow on 12,000 guardians around the state the most awesome power imaginable over the life of another."

Tschumy, 57, who was mentally disabled and had been under guardianship since 2008, lived in a group home until last April, when he choked on food, could not be revived and was declared severely brain damaged with little hope for recovery. Allina Health System filed a motion requesting a judge allow Tschumy to be removed from life support either by clarifying that his guardian, Joseph Vogel, had the right to make that decision or issuing the order from the bench.

Vogel's attorney, Charles Singer, argued that the inherent powers of guardianship allowed Vogel to disconnect life support. Mike Biglow, an attorney appointed to represent Tschumy's interests, concurred that Tschumy should be removed from life support because there was no evidence that he could recover or would want to live in his current condition.

Tschumy's family could not be located, and he had no health care directive.

In May, 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 Thursday's order elaborating on his decision, Quam noted that although a seminal state Supreme Court case noted that probate court judges could authorize termination of life support, that case never resolved whether guardians could do so. State 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, counsel, treatment or service," but specifically excludes psychosurgery, electroshock, sterilization or experimental treatment unless the guardian receives a judge's approval. Quam wrote that end-of-life decisions are too important to be included in such broad language, and to be made by a guardian likely appointed years before to handle matters of daily living, not dying.

"How could a judicial officer know that a guardian will make a responsible decision if and when that time comes?" Quam wrote. "What questions would a judge ask to define a guardian's willingness and ability to make decisions about possibly ending a life of a loved one years later under unknown circumstances?

"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."

Biglow called the ruling "well-reasoned and sound" based on current state law. He said it was an honor to represent Tschumy, whom he visited in the hospital. He said he noted the noise and activity surrounding Tschumy, and the teamwork involved in keeping him alive and as seizure- and pain-free as possible.

"This was a human being who needed not only some representation but to describe who he was." Biglow said. "He comes from a family, he comes from a community. He has certain moral and religious beliefs and social values. This is all a part of him lying there, so who will take a look at that before a decision is made to terminate his life?"

Abby Simons • 612-673-4921

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