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09/07/95 ESTATE LUCILLE AUSTWICK v. PATRICK T.

September 7, 1995

IN RE THE ESTATE OF LUCILLE AUSTWICK, A DISABLED PERSON. JOHN B. LOWER, DIRECTOR, LEGAL ADVOCACY SERVICE; GUARDIANSHIP AND ADVOCACY COMMISSION, RESPONDENT-APPELLANT,
v.
PATRICK T. MURPHY, COOK COUNTY PUBLIC GUARDIAN, PETITIONER-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable James W. Kennedy, Judge Presiding.

The Honorable Justice Sheila O'brien delivered the opinion of the court: Hoffman, P.j. and Theis, J. concur.

The opinion of the court was delivered by: O'brien

JUSTICE SHEILA O'BRIEN delivered the opinion of the court:

The Cook County Public Guardian (hereinafter Public Guardian) appeals from the trial court's order removing a Do Not Resuscitate Order (DNR) from the medical chart of the Public Guardian's ward, Lucille Austwick. Mrs. Austwick cross-appeals from the trial court's order denying her petition to remove the Public Guardian for cause. We affirm.

On October 18, 1991, the probate court adjudicated 81-year-old Lucille Austwick a disabled person (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 11a-1 et. seq. (now 755 ILCS 5/11a-1 et. seq. (West 1992))) and appointed the Public Guardian as plenary guardian of Mrs. Austwick's person and estate. In July 1992, Mark Broaddus, an attorney employed by the Public Guardian, visited Mrs. Austwick at her nursing home and asked whether she wanted a DNR in her medical chart. Broaddus explained to Mrs. Austwick the DNR would direct nursing home staff not to administer artificial ventilation, endotracheal intubation, closed chest cardiac massage, and emergency paramedic resuscitation. Mrs. Austwick stated she wanted the DNR. On January 7, 1993, the Public Guardian gave his consent to Mrs. Austwick's attending physician to place the DNR in Mrs. Austwick's nursing home medical chart.

On January 14, 1994, Mrs. Austwick, through the Legal Advocacy Service of the Illinois Guardianship and Advocacy Commission, petitioned the probate court to terminate the DNR. She also requested the removal of the Public Guardian as her plenary guardian because he failed to comply with the procedures set forth in the Health Care Surrogate Act (HCSA) (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 851-1 et seq. (now 755 ILCS 40/1 et seq. (West 1992))) when consenting to the DNR. Under the HCSA, an adult patient who is able to make and communicate an informed decision to forgo life-sustaining treatment may do so without judicial involvement. (See Ill. Rev. Stat. 1991, ch. 110 1/2, par. 851-5(b) (now 40/5 (b) (West 1992)).) When a person lacks such "decisional capacity" and suffers from a "qualifying condition", that is, a "terminal condition", "permanent unconsciousness", or "irreversible condition", (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 851-10 (now 755 ILCS 40/10 (West 1992))) the HCSA authorizes a surrogate decision maker to decide whether to forgo life-sustaining treatment on that person's behalf. (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 851-20 (now 755 ILCS 40/20 (West 1992)).) Mrs. Austwick argued she did not lack decisional capacity or have a qualifying condition, and therefore the Public Guardian had no authority to consent to a DNR for her.

Mrs. Austwick also argued for the removal of the Public Guardian because he had authorized the administration of psychotropic medication for her without court approval. Mrs. Austwick cited In re Guardianship of Austin (1993), 245 Ill. App. 3d 1042, 615 N.E.2d 411, 185 Ill. Dec. 852, which held that section 2-107.1 of the Mental Health and Developmental Disabilities Code requires a petition, hearing, and court order before a guardian can authorize psychotropic medication.

Finally, Mrs. Austwick contended the Public Guardian should be removed because he violated the "ethical standards of guardianship" when he consented to the DNR and authorized psychotropic medication for her.

At the hearing on the petition, Mark Broaddus testified about his conversation with Mrs. Austwick in July 1992 when she told him she wanted the DNR. Broaddus also testified that on January 17, 1994, three days after Mrs. Austwick filed her petition to terminate the DNR and remove the Public Guardian, he again spoke with Mrs. Austwick and she told him she still desired the DNR. Broaddus believed Mrs. Austwick had decisional capacity during both conversations.

Dr. Steven Fox, an expert in geriatric medicine, testified he had reviewed Mrs. Austwick's medical records and found no physician's statement saying she lacked decisional capacity. However, Dr. Fox noted since Mrs. Austwick had been adjudicated disabled under the Probate Act, "that's [an] indication *** capacity is lacking somewhere." Dr. Fox also determined Mrs. Austwick was not suffering from one of the qualifying conditions as defined in the HCSA.

Mrs. Austwick's sister, Geraldine Champlain, testified in her evidence deposition that Mrs. Austwick stated prior to her adjudication as a disabled adult she would not want to be kept alive by machines. However, Mrs. Champlain testified Mrs. Austwick might not object to closed chest cardiac massage, one of the procedures prohibited under the DNR. Mrs. Austwick did not testify at the hearing.

The trial court ordered the DNR be removed. After hearing testimony that Mrs. Austwick's medical records did not indicate psychotropic medication had been administered against her will, the trial court denied her petition to remove the Public Guardian.

On appeal, the Public Guardian argues (a) Mrs. Austwick had decisional capacity when she informed Broaddus in July 1992 and January 1994 she wanted the DNR, and (b) the HCSA authorized the Public Guardian to consent to the DNR for her. Therefore, the trial court erred when it ordered the removal of the DNR from Mrs. Austwick's medical chart.

Under the HCSA, a person is presumed to have decisional capacity unless her attending physician states otherwise in writing and one other physician concurs. (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 851-20(c) (now 755 ILCS 40/20(c) (West 1992)).) There are no such statements in Mrs. Austwick's medical records. However, Mrs. Austwick has been adjudicated disabled under the Probate Act. The Act defines as disabled a person 18 years or older who lacks the ability to fully manage her person or estate. (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 11a-2 (now 755 ILCS 5/11a-2 (West 1992)).) Dr. Fox concluded because Mrs. Austwick was disabled under the Probate Act she must lack decisional capacity. We disagree. Although a petition for adjudication of disability must be accompanied by a doctor's evaluation of the patient's mental and physical condition (see Ill. Rev. Stat. 1991, ch. 110 1/2, par. 11a-9 (now 755 ILCS 5/11a-9 (West 1992))), the doctor is not required to determine the patient's decisional ...


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