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Decided on June 7, 2011
Supreme Court, Erie County

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MARGARET MURPHY, ESQ.
Attorney for Petitioner, Erie County Home
HELEN FERRARO-ZAFFRAM, ESQ.
Attorney for Jane Doe,
Incapacitated Person
MARK PERLA, ESQ.

JILL ST. LEDGER-ROTY, ESQ.
Court Examiner
John A. Michalek, J.
Petitioner moves pursuant to Article 81 of the Mental Hygiene Law and Article 29-CC of the Public Health Law, commonly known as the Family Health Care Decisions Act, for the authority to withhold life sustaining treatment from Jane Doe, including the authority to consent to a Do Not Intubate (DNI) order, to decline and/or withdraw a percutaneous endoscopic gastrostomy (PEG) or nasogastric (NG) tube, and to consent to the issuance of "comfort only" measures.
Jane Doe has been a resident of the Erie County Home since 2000. In 2001, Petitioner, [*2]obtained Article 81 guardianship powers with respect to her.
Based on all of the evidence before it, the Court finds that the relief sought is authorized by the Mental Hygiene Law and the Public Health Law, that it comports with the wishes, preferences and desires of Jane Doe, and that it is in her best interests.
Pursuant to Section 81.15 of the Mental Hygiene Law and the spirit of Article 81 in general, this Court must make findings when it establishes a guardianship or when it increases a guardian's powers. Accordingly, the Court makes the following findings relative to its Decision here today:
(1) Jane Doe has, through her counsel, consented on the record to the increased authority sought by Petitioner on this application. In light of the mandate of Article 81 of the Mental Hygiene Law that the Court and guardian afford the incapacitated person the greatest amount of independence and self-determination, and that guardianship powers are to be granted and exercised consistent with the incapacitated person's personal wishes, preferences and desires, Jane Doe's consent to the relief sought is of paramount importance.
Furthermore, Section 2994-d(4) of the Public Health Law requires a surrogate to make health care decisions in accordance with the patient's wishes or, if those are not known, in accordance with the patient's best interests. Here, as already noted, the patient's wishes are known and support the
Moreover, Jane Doe signed a Consent to a Do Not Resuscitate (DNR) order in 2000 while she was a resident of the Erie County Home and approximately eleven months before the guardianship herein was established. This act is consistent with her current position relative to the relief sought today as expressed by her counsel on her behalf.
(2) As referenced by Jane Doe's treating physician and concurring physician, Jane Doe is incapacitated and suffers from the following conditions:
Advanced Dementia;
Cachexia/Failure to thrive;
Normal pressure hydrocephalus status post shunt placement; and
Anorexia.
Jane Doe has exhibited gradual weight loss throughout the winter of 2010 and now weighs less than 90 pounds.
Since March of 2011, Jane Doe has refused all medications and consequently, they have been discontinued. Food and fluids are offered to Jane Doe, but she generally refuses them. [*3]
(3) The treating and concurring physicians have provided affidavits that Jane Doe has expressed that she would not want tube feedings and that it is their opinion, to a reasonable degree of medical certainty and in accordance with medical standards, that:
(a)
Continued treatment would be an extraordinary burden to Jane Doe;

(b)
Jane Doe suffers from medical illnesses that can be expected to cause her


death within six months, whether or not treatment is provided;
( c ) Given her advanced dementia, age and her coexisting medical conditions, it is unlikely that intubation or feedings through a percutaneous endoscopic gastrostomy (PEG) or Nasogastric (NG) tube, would prolong Jane Doe's life, and that these measures would expose her to a number of
(d)
The provision of treatment would be deemed inhumane and would cause an extraordinary burden on Jane Doe;

(e)
Jane Doe's condition is irreversible and incurable;

(f)
Jane Doe meets the criteria of Section 2994-d (5) of the Public Health Law; and



(g)
Petitioner should be granted the authority to withhold and/or withdraw life-sustaining treatment for Jane Doe, including the authority to consent to the issuance of a Do Not intubate Order, to decline or withdraw PEG/NG tube feeding, and to institute "comfort only" measures.

(4)
The Petitioner's Ethics Committee agrees with the opinions of the treating and concurring physicians.


As to the issue of whether the recently enacted, relevant sections of the Public Health Law should be applied retroactively to this matter, this Court notes that this question has been answered in the affirmative by Justice William P. Ippolito in the case of In the Matter of Carole Zornow, as Petitioner pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of Joan M. Zornow, an Allegedly Incapacitated Person. 31 Misc 3d 450, 919 N.Y.S.2d 273 (Sup. Ct., Monroe Cnty. 2010).
Furthermore, this Court finds persuasive support for retroactive application of the Public Health Law in the repeal of former Section of 81.29 (e) of the Mental Hygiene Law which provided that it was not to be construed as either prohibiting or authorizing a court to grant to any person the power to give consent for the withholding or withdrawal of life sustaining treatment.
Additionally, though not controlling on this Court, it is relevant and instructive that the New York State Bar Association anticipates that the new law will be judicially applied to Article 81 [*4]guardians appointed prior to June 1, 2010.
In sum, based on all of the evidence presented and the findings made, all relevant criteria of both Article 81 of the Mental Hygiene Law and Article 29-CC of the Public Health Law have been satisfied. Thus, Petitioner has met its burden in establishing entitlement to the relief sought.
Finally, neither the Court Evaluator nor the Court Examiner has raised any objection.
Accordingly, the application is granted. DATED:June 7, 2011

Buffalo, New York

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