In two other recent posts, we provided an introduction to MOLST orders, a relatively new phenomenon in the world of estate planning. Once again, MOLST stands for “Medical Orders for Life-Sustaining Treatment.” A MOLST order is an order to doctors and other medical professionals concerning life-sustaining treatment.
A MOLST order is often used when one is nearing the end of life as a result of serious medical conditions. The order can direct medical professionals to either apply, or to refrain from applying, certain life-sustaining measures during a medical crisis. These include (1) cardiopulmonary resuscitation and (2) ventilation and intubation.
For the guardian of a person who is very ill but cannot make medical decisions themselves – for example, a person with severe intellectual disabilities – the question may arise whether to execute a MOLST order on their behalf. This can raise complicated legal issues.
A lawful, court-ordered guardianship gives a guardian broad authority to make decisions on behalf of their “ward” – that is, the person over whom they have the guardianship. But certain decisions on behalf of a ward require what is called an “expanded guardianship.” Practically speaking, this requires the guardian to seek additional court authority to make some very serious decisions on the ward’s behalf.
The administration of antipsychotic medications is an example of where an expanded guardianship is needed. To order a physician to administer such a medication to a ward, the guardian needs to obtain what is called “Rogers authority” from a Massachusetts court, which is a form of expanded guardianship. The name for this authority comes from a Massachusetts court decision, Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983).
The Massachusetts court system has not specifically determined whether issuing a MOLST order on behalf of an intellectually disabled person requires an expanded guardianship. However, the Massachusetts Department of Developmental Services (“DDS”) does take the position that such expanded authority is needed to execute at least certain portions of a MOLST form. Thus, for wards who live in DDS facilities or group homes, and who are thus in DDS custody, it likely will be necessary to obtain expanded authority before issuing a MOLST order to the ward’s medical professionals.
This is an area that is both complex and weighty.Contact Frain and Associates for guidance if you are facing any of these issues.