HF 2622

as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to guardianships; specifying the authority of 
  1.3             courts to give a guardian the power to consent to the 
  1.4             administration of neuroleptic medications; amending 
  1.5             Minnesota Statutes 2002, section 253B.092, subdivision 
  1.6             6; Minnesota Statutes 2003 Supplement, section 
  1.7             524.5-313.  
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  Minnesota Statutes 2002, section 253B.092, 
  1.10  subdivision 6, is amended to read: 
  1.11     Subd. 6.  [PATIENTS WITHOUT CAPACITY TO MAKE INFORMED 
  1.12  DECISION; SUBSTITUTE DECISION-MAKER.] (a) Upon request of any 
  1.13  person, and upon a showing that administration of neuroleptic 
  1.14  medications may be recommended and that the person may lack 
  1.15  capacity to make decisions regarding the administration of 
  1.16  neuroleptic medication, the court shall appoint a substitute 
  1.17  decision-maker with authority to consent to the administration 
  1.18  of neuroleptic medication as provided in this section.  A 
  1.19  hearing is not required for an appointment under this 
  1.20  paragraph.  The substitute decision-maker must be an individual 
  1.21  or a community or institutional multidisciplinary panel 
  1.22  designated by the local mental health authority.  The substitute 
  1.23  decision-maker may be a guardian given authority to act in this 
  1.24  capacity under section 524.5-313, paragraph (d), in which case a 
  1.25  separate appointment under this subdivision is not required.  In 
  1.26  appointing a substitute decision-maker, the court shall give 
  2.1   preference to a guardian or conservator, proxy, or health care 
  2.2   agent with authority to make health care decisions for the 
  2.3   patient.  The court may provide for the payment of a reasonable 
  2.4   fee to the substitute decision-maker for services under this 
  2.5   section or may appoint a volunteer. 
  2.6      (b) If the person's treating physician recommends treatment 
  2.7   with neuroleptic medication, the substitute decision-maker may 
  2.8   give or withhold consent to the administration of the 
  2.9   medication, based on the standards under subdivision 7.  If the 
  2.10  substitute decision-maker gives informed consent to the 
  2.11  treatment and the person does not refuse, the substitute 
  2.12  decision-maker shall provide written consent to the treating 
  2.13  physician and the medication may be administered.  The 
  2.14  substitute decision-maker shall also notify the court that 
  2.15  consent has been given.  If the substitute decision-maker 
  2.16  refuses or withdraws consent or the person refuses the 
  2.17  medication, neuroleptic medication may not be administered to 
  2.18  the person without a court order or in an emergency. 
  2.19     (c) A substitute decision-maker appointed under this 
  2.20  section has access to the relevant sections of the patient's 
  2.21  health records on the past or present administration of 
  2.22  medication.  The designated agency or a person involved in the 
  2.23  patient's physical or mental health care may disclose 
  2.24  information to the substitute decision-maker for the sole 
  2.25  purpose of performing the responsibilities under this section.  
  2.26  The substitute decision-maker may not disclose health records 
  2.27  obtained under this paragraph except to the extent necessary to 
  2.28  carry out the duties under this section. 
  2.29     (d) At a hearing under section 253B.08, the petitioner has 
  2.30  the burden of proving incapacity by a preponderance of the 
  2.31  evidence.  If a substitute decision-maker has been appointed by 
  2.32  the court, the court shall make findings regarding the patient's 
  2.33  capacity to make decisions regarding the administration of 
  2.34  neuroleptic medications and affirm or reverse its appointment of 
  2.35  a substitute decision-maker.  If the court affirms the 
  2.36  appointment of the substitute decision-maker, and if the 
  3.1   substitute decision-maker has consented to the administration of 
  3.2   the medication and the patient has not refused, the court shall 
  3.3   make findings that the substitute decision-maker has consented 
  3.4   and the treatment is authorized.  If a substitute decision-maker 
  3.5   has not yet been appointed, upon request the court shall make 
  3.6   findings regarding the patient's capacity and appoint a 
  3.7   substitute decision-maker if appropriate. 
  3.8      (e) If an order for civil commitment or, early 
  3.9   intervention, or guardianship did not provide for the 
  3.10  appointment of a substitute decision-maker or for the 
  3.11  administration of neuroleptic medication, the treatment facility 
  3.12  may later request the appointment of a substitute decision-maker 
  3.13  upon a showing that administration of neuroleptic medications is 
  3.14  recommended and that the person lacks capacity to make decisions 
  3.15  regarding the administration of neuroleptic medications.  A 
  3.16  hearing is not required in order to administer the neuroleptic 
  3.17  medication unless requested under subdivision 10 or if the 
  3.18  substitute decision-maker withholds or refuses consent or the 
  3.19  person refuses the medication. 
  3.20     (f) The substitute decision-maker's authority to consent to 
  3.21  treatment lasts for the duration of the court's order of 
  3.22  appointment or until modified by the court. 
  3.23     If the substitute decision-maker withdraws consent or the 
  3.24  patient refuses consent, neuroleptic medication may not be 
  3.25  administered without a court order. 
  3.26     (g) If there is no hearing after the preliminary hearing, 
  3.27  then the court shall, upon the request of any interested party, 
  3.28  review the reasonableness of the substitute decision-maker's 
  3.29  decision based on the standards under subdivision 7.  The court 
  3.30  shall enter an order upholding or reversing the decision within 
  3.31  seven days. 
  3.32     Sec. 2.  Minnesota Statutes 2003 Supplement, section 
  3.33  524.5-313, is amended to read: 
  3.34     524.5-313 [POWERS AND DUTIES OF GUARDIAN.] 
  3.35     (a) A guardian shall be subject to the control and 
  3.36  direction of the court at all times and in all things. 
  4.1      (b) The court shall grant to a guardian only those powers 
  4.2   necessary to provide for the demonstrated needs of the ward. 
  4.3      (c) The court may appoint a guardian if it determines that 
  4.4   all the powers and duties listed in this section are needed to 
  4.5   provide for the needs of the incapacitated person.  The court 
  4.6   may also appoint a guardian if it determines that a guardian is 
  4.7   needed to provide for the needs of the incapacitated person 
  4.8   through the exercise of some, but not all, of the powers and 
  4.9   duties listed in this section.  The duties and powers of a 
  4.10  guardian or those which the court may grant to a guardian 
  4.11  include, but are not limited to: 
  4.12     (1) the power to have custody of the ward and the power to 
  4.13  establish a place of abode within or outside the state, except 
  4.14  as otherwise provided in this clause.  The ward or any 
  4.15  interested person may petition the court to prevent or to 
  4.16  initiate a change in abode.  A ward may not be admitted to a 
  4.17  regional treatment center by the guardian except: 
  4.18     (i) after a hearing under chapter 253B; 
  4.19     (ii) for outpatient services; or 
  4.20     (iii) for the purpose of receiving temporary care for a 
  4.21  specific period of time not to exceed 90 days in any calendar 
  4.22  year; 
  4.23     (2) the duty to provide for the ward's care, comfort, and 
  4.24  maintenance needs, including food, clothing, shelter, health 
  4.25  care, social and recreational requirements, and, whenever 
  4.26  appropriate, training, education, and habilitation or 
  4.27  rehabilitation.  The guardian has no duty to pay for these 
  4.28  requirements out of personal funds.  Whenever possible and 
  4.29  appropriate, the guardian should meet these requirements through 
  4.30  governmental benefits or services to which the ward is entitled, 
  4.31  rather than from the ward's estate.  Failure to satisfy the 
  4.32  needs and requirements of this clause shall be grounds for 
  4.33  removal of a private guardian, but the guardian shall have no 
  4.34  personal or monetary liability; 
  4.35     (3) the duty to take reasonable care of the ward's 
  4.36  clothing, furniture, vehicles, and other personal effects, and, 
  5.1   if other property requires protection, the power to seek 
  5.2   appointment of a conservator of the estate.  The guardian must 
  5.3   give notice by mail to interested persons prior to the 
  5.4   disposition of the ward's clothing, furniture, vehicles, or 
  5.5   other personal effects.  The notice must inform the person of 
  5.6   the right to object to the disposition of the property within 
  5.7   ten days of the date of mailing and to petition the court for a 
  5.8   review of the guardian's proposed actions.  Notice of the 
  5.9   objection must be served by mail or personal service on the 
  5.10  guardian and the ward unless the ward is the objector.  The 
  5.11  guardian served with notice of an objection to the disposition 
  5.12  of the property may not dispose of the property unless the court 
  5.13  approves the disposition after a hearing; 
  5.14     (4)(i) the power to give any necessary consent to enable 
  5.15  the ward to receive necessary medical or other professional 
  5.16  care, counsel, treatment, or service, except that no guardian 
  5.17  may give consent for psychosurgery, electroshock, sterilization, 
  5.18  or experimental treatment of any kind unless the procedure is 
  5.19  first approved by order of the court as provided in this clause. 
  5.20  The guardian shall not consent to any medical care for the ward 
  5.21  which violates the known conscientious, religious, or moral 
  5.22  belief of the ward; 
  5.23     (ii) a guardian who believes a procedure described in item 
  5.24  (i) requiring prior court approval to be necessary for the 
  5.25  proper care of the ward, shall petition the court for an order 
  5.26  and, in the case of a public guardianship under chapter 252A, 
  5.27  obtain the written recommendation of the commissioner of human 
  5.28  services.  The court shall fix the time and place for the 
  5.29  hearing and shall give notice to the ward in such manner as 
  5.30  specified in section 524.5-308 and to interested persons.  The 
  5.31  court shall appoint an attorney to represent the ward who is not 
  5.32  represented by counsel, provided that such appointment shall 
  5.33  expire upon the expiration of the appeal time for the order 
  5.34  issued by the court under this section or the order dismissing a 
  5.35  petition, or upon such other time or event as the court may 
  5.36  direct.  In every case the court shall determine if the 
  6.1   procedure is in the best interest of the ward.  In making its 
  6.2   determination, the court shall consider a written medical report 
  6.3   which specifically considers the medical risks of the procedure, 
  6.4   whether alternative, less restrictive methods of treatment could 
  6.5   be used to protect the best interest of the ward, and any 
  6.6   recommendation of the commissioner of human services for a 
  6.7   public ward.  The standard of proof is that of clear and 
  6.8   convincing evidence; 
  6.9      (iii) in the case of a petition for sterilization of a 
  6.10  mentally retarded ward, the court shall appoint a licensed 
  6.11  physician, a psychologist who is qualified in the diagnosis and 
  6.12  treatment of mental retardation, and a social worker who is 
  6.13  familiar with the ward's social history and adjustment or the 
  6.14  case manager for the ward to examine or evaluate the ward and to 
  6.15  provide written reports to the court.  The reports shall 
  6.16  indicate why sterilization is being proposed, whether 
  6.17  sterilization is necessary and is the least intrusive method for 
  6.18  alleviating the problem presented, and whether it is in the best 
  6.19  interest of the ward.  The medical report shall specifically 
  6.20  consider the medical risks of sterilization, the consequences of 
  6.21  not performing the sterilization, and whether alternative 
  6.22  methods of contraception could be used to protect the best 
  6.23  interest of the ward; 
  6.24     (iv) any ward whose right to consent to a sterilization has 
  6.25  not been restricted under this section or section 252A.101 may 
  6.26  be sterilized only if the ward consents in writing or there is a 
  6.27  sworn acknowledgment by an interested person of a nonwritten 
  6.28  consent by the ward.  The consent must certify that the ward has 
  6.29  received a full explanation from a physician or registered nurse 
  6.30  of the nature and irreversible consequences of the 
  6.31  sterilization; 
  6.32     (v) a guardian or the public guardian's designee who acts 
  6.33  within the scope of authority conferred by letters of 
  6.34  guardianship under section 252A.101, subdivision 7, and 
  6.35  according to the standards established in this chapter or in 
  6.36  chapter 252A shall not be civilly or criminally liable for the 
  7.1   provision of any necessary medical care, including, but not 
  7.2   limited to, the administration of psychotropic medication or the 
  7.3   implementation of aversive and deprivation procedures to which 
  7.4   the guardian or the public guardian's designee has consented; 
  7.5      (5) in the event there is no duly appointed conservator of 
  7.6   the ward's estate, the guardian shall have the power to approve 
  7.7   or withhold approval of any contract, except for necessities, 
  7.8   which the ward may make or wish to make; 
  7.9      (6) the duty and power to exercise supervisory authority 
  7.10  over the ward in a manner which limits civil rights and 
  7.11  restricts personal freedom only to the extent necessary to 
  7.12  provide needed care and services; 
  7.13     (7) if there is no acting conservator of the estate for the 
  7.14  ward, the guardian has the power to apply on behalf of the ward 
  7.15  for any assistance, services, or benefits available to the ward 
  7.16  through any unit of government; 
  7.17     (8) unless otherwise ordered by the court, the ward retains 
  7.18  the right to vote. 
  7.19     (d) The court may give a guardian the power to act as a 
  7.20  substitute decision-maker for purposes of consenting to the 
  7.21  administration of neuroleptic medication as provided in section 
  7.22  253B.092.  The power granted under this paragraph is effective 
  7.23  for two years or a shorter time period specified by the court 
  7.24  and may be extended by the court for an additional time period 
  7.25  of up to two years.