Public Health Law Map - Beta 5 - Medical and Public Health Law Site

the guardianship papers in the patient’s medical record, an attorney should review
these papers to ensure that they are in order. This review is to determine if there are
any limitations on the guardian’s authority. Since these cases usually involve
hospitalization, the physician should also discuss the guardianship with the hospital’s
attorney.
Once a guardian has been appointed for a given purpose, the court does not second-
guess the guardian’s decisions. It does attempt to ensure that the guardian is acting
properly, and persons may ask the court to remove the guardian if they believe that
he or she is acting improperly. If a physician is treating a patient who has a guardian,
the physician does not need to ask the court to approve each of the guardian’s
decisions. The physician should be prepared to explain how he or she and the
guardian arrived at those decisions. Physicians treating patients with contentious
guardianship arrangements should ensure that all decisions by the guardian are
carefully documented in the medical record.
2. Emergency Guardianships
Two situations make it necessary to obtain an emergency guardianship: (1) when a
parent refuses to authorize necessary care for a minor child and (2) when an adult
refuses care in a situation in which the medical care provider believes the refusal
should not be honored. In both situations, the care at issue must be necessary to save
life or limb or to prevent serious permanent injury. If the care is for a noncritical
condition or has little hope of benefiting the patient, the patient’s or parent’s wishes
should be heeded while applying for a guardianship on a nonemergency basis.
In an emergency guardianship, the judge appoints a temporary guardian for the
patient. The appointment may be made over the telephone if the hospital has
previously arranged a protocol with the appropriate judges. This protocol must
address the care that is needed, the consequences of delaying the care while a hearing
is scheduled, and an explanation of why the patient or parent will not consent to the
care. Ideally, the patient will be examined by an independent physician who can
certify that the care is needed to preserve the patient’s life or limb. The judge will
often speak to the parents or the patient, if possible.
If the judge determines that an emergency guardianship is warranted, a temporary
guardian will be appointed. The judge will usually limit the scope of the guardian’s
authority to consenting to care that is needed to prevent permanent harm or death.
This guardian may be a hospital administrator, but it is preferable to appoint a person
who is independent of the hospital and health care providers. The temporary guardian
serves until the court can have a hearing with all the concerned parties. The hearing
will be held as soon as the parties can be notified and a courtroom scheduled,
sometimes within 24 hours.
a) Minors
When a parent refuses necessary medical care for a child, it is usually for
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