What is a Rogers Guardianship?

Guest Contributor: Joanne Moses, Esq.

In a guardianship hearing, the court determines whether an adult is incapacitated and requires a guardian to make ordinary medical and personal decisions on the adult’s behalf. If the incapacitated person requires medical treatments or care that the court considers extraordinary, a guardian must obtain the court’s permission. In a Rogers guardianship hearing, the court is being asked to authorize extraordinary treatment or care, such as administering antipsychotic medications, admitting an adult to a nursing home facility, and other medical care. In this article, Joanne Moses, Esq., focuses on how the court decides whether to authorize treatment for antipsychotic medications and how to obtain a Rogers guardianship.

1. What is a Rogers Guardianship?  How does the court protect an incapacitated person in considering the administration of antipsychotic medications?

A Rogers guardianship is one in which the guardian obtains the court’s permission for extraordinary treatment. The types of medical treatments which the court may consider ‘extraordinary’ includes administering of antipsychotic medication, sterilization, abortion, electroconvulsive therapy, psychosurgery and removal of artificial maintenance of nutrition or hydration, and other treatments and procedures. A Rogers guardianship hearing is commonly held to determined whether to administer antipsychotic medications to an incapacitated person.

Guardianship is a protective legal process where the Massachusetts Probate Court may appoint a person or agency, called a Guardian, to make personal and medical decisions on behalf of another person, called an Incapacitated Person. An Incapacitated Person is an adult, who due to a diagnosed medical condition lacks the ability to make effective decisions about his or her everyday personal care, health and safety.

However, a Guardian does not have the power to consent or withhold consent for the use of antipsychotic medications for their Incapacitated Person. A special procedure is required to protect the Incapacitated Person. If the Incapacitated Person is being treated with, or it is being proposed to treat this person with antipsychotic medications, the guardian must obtain court authorization at a court hearing.

If the Court authorizes such treatment, it will issue an order called a “Rogers” order for treatment with antipsychotic medication. This procedure was established by the Supreme Judicial Court in a decision entitled Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983). It was decided that treatment with antipsychotic medications is extraordinary treatment, requiring special protections for incapacitated persons who are treated with this medication.

2. What medications are considered to be antipsychotic medications?

Antipsychotic medications are generally considered to be “typical” (the older class of medications) or “atypical” (the newer class of medications). This is a list of medications considered to be antipsychotic medications that require court authorization. Other psychotropic medications, such as antidepressant medications or mood stabilizers are not antipsychotic medications, and do not require specific court authorization.

“Typical” Antipsychotic Medications:
Haldol (haloperidol), Haldol Decanoate (haloperidol decanoate), Loxitane (loxapine),Navane (thiothixene), Prolixin (fluphenazine), Prolixin Decanoate (fluphenazine decanoate), Stelazine (trifluoperazine), Thorazine (chlorpromazine), Trilafon (perphenazine).

“Atypical”Antipsychotic Medications:
Abilify (aripiprazole), Clozaril (clozapine), Geodon (ziprasidone), Invega (paliperidone),Risperdal (risperidone), Risperdal Consta (risperidoneconsta LAI), Seroquel (quetiapine fumarate), Zyprexa (olanzapine).

3. How does the Court decide whether to authorize treatment for antipsychotic medications?

For a guardianship, a court must determine whether a person is incapacitated in general or in specific areas, and therefore requires the protection of a guardian. In a Rogers’ Guardianship, the court is also being asked to authorize treatment with antipsychotic medication for an incapacitated person. In that case, a court must first find that the person is incapacitated, and then make the following determinations: 1) that the person is not competent to decide whether or not to give informed consent for the treatment with antipsychotic medications, and if not competent, then 2) determine what the person would choose to do if he or she were competent, using a substituted judgment standard.

4. How does the Court determine what the incapacitated person’s substituted judgment would be in regard to accepting or not accepting treatment with antipsychotic medications?

‘Substituted judgment’ means the Court substitutes itself for the incapacitated person and attempts to determine that person’s actual interests and preferences, and how he or she would make the decision regarding antipsychotic medication if competent. The Court must take into account all of the factors and concerns that likely make up the particular person’s decision-making, including the following: the person’s expressed preferences regarding treatment with antipsychotic medications, the person’s religious convictions, the impact of the decision on the person’s family, the probability of adverse side effects, and the prognosis for the person with and without treatment.

If the Incapacitated Person is so impaired that he or she is unable to express a preference, the court will look at the totality of the circumstances of the person to try and determine what the person would decide if he or she were competent to make such a decision, taking into account the person’s incapacity.

5. What other treatments require the Court’s permission and a substituted judgment determination?

The substituted judgment standard is now codified in the Massachusetts Uniform Probate Code, at Mass. Gen. Laws. c. 190B, § 5-306A, and it must be used in circumstances when extraordinary treatment is proposed for a person under guardianship, or when such treatment is proposed for a person who is in need of guardianship. Treatments that have been found to be extraordinary are generally considered to be medical treatments that are particularly intrusive, risky or restrictive of liberty. (e.g., antipsychotic medications, electro-convulsive therapy¸ and sterilization.)

6. How do you ask the Court for a Rogers Guardianship?

In order to obtain a Rogers Guardianship with authority to administer antipsychotic medications, you must fill out the Petition for Guardianship of an Incapacitated Person (form MPC 120). The person who fills out and files the Petition is called the Petitioner. The person who is the subject of the guardianship is called the Respondent or proposed incapacitated person. All court forms can be found at the Massachusetts Probate and Family Court web page. To make a request for court authorization to treat an adult with antipsychotic medication (Rogers order), or to ask the court for another substituted judgment, you must check the box on the Petition at section # 14:

14. Petitioner seeks specific court authorization:
To treat Respondent with antipsychotic medication in accordance with a treatment plan;
For the following treatment or action for which a substituted judgment determination may be required:

7. What other court documents do you fill out and file with the Petition for Guardianship?

In order to file for a guardianship, you need to file a Medical Certificate (for a mentally ill “incapacitated person”) or a Clinical Team Report (for a developmentally delayed “incapacitated person”). One of these forms needs to be submitted to the court at the time you file the Petition.

In addition, you will need to submit a Clinician’s Affidavit as to Competency and Treatment (form MPC 800). It need not be filed when the Petition is filed, but it needs to be obtained and shared with all parties prior to any hearing seeking a Rogers order.

The Clinician’s Affidavit must be completed by a licensed physician, psychiatrist, or certified psychiatric nurse clinical specialist who treats the Respondent, or has evaluated the Respondent for the purpose of filling out the affidavit. It should provide enough information for the Court to determine what treatment is being proposed, the Respondent’s current condition, and the Respondent’s preferences with regard to the proposed treatment. It should also provide information about the substituted judgment factors that the Court will need to make a substituted judgment determination.

At the time of the hearing, the petitioner will need to submit proposed Findings of Fact, and a proposed Treatment Plan (form MPC 825). Be sure to check with the staff at the Court’s Registry office for other guardianship related court documents to file.

8. What are the rights of the Respondent or proposed incapacitated person in a Rogers proceeding?

After a Petition for Guardianship is filed with the Court by the Petitioner with a request for treatment with antipsychotic medications, the incapacitated person has the following rights:

a. The right to an attorney. At the time the petition is filed, the court will automatically appoint an attorney to represent the proposed incapacitated person in the Rogers proceeding. This attorney will generally be paid by the Commonwealth. This attorney will represent what the proposed incapacitated person wants, not what is necessarily in his or her best interests. If the incapacitated person does not want treatment with antipsychotic medications, for example, this will result in a contested hearing.
b. The right to notice that a petition has been filed and the date, time, and place of the hearing.
c. The right to a hearing and the right to be present at the hearing. The Rogers decision expected that the incapacitated person would want to be present at the hearing, and required that petitioners ensure their presence unless there were extraordinary reasons for the absence. In practice, many incapacitated persons are unwilling to attend the hearing. They are not required to attend, but the Court needs to make specific findings as to why he or she was not present, and generally the Rogers attorney will have to file a Motion to Waive the incapacitated person’s presence.
d. The right to object to the appointment of a Guardian and present evidence and cross-examine witnesses.

9. What happens at the Rogers’ Guardianship hearing?

The court will hear from all parties. If there are objections to the petition being allowed, the court will need to hear evidence supporting the grounds of the petition. Witnesses may be required to attend the hearing, including the clinician who wrote the clinician’s affidavit.

The petitioner will need to submit proposed findings and an antipsychotic medications treatment plan. An antipsychotic medications treatment plan includes the medication currently being proposed, with the dosage and dosage range, and also lists any alternative antipsychotic medications that might be tried during the next 12 months, with their dosage ranges. You can use the court form, MPC 825. Other parties may submit alternative findings, if they so choose.

If, after the hearing, the court finds that the guardianship should be allowed, and that the Rogers treatment plan should be approved, the court will issue a decree, findings and a treatment plan. The court will appoint a guardian for the incapacitated person, and if the treatment plan is approved, the Court will appoint a person to monitor the administration of antipsychotic medications pursuant to the treatment plan. The person is called a Rogers’ Monitor. The Guardian and the Rogers’ Monitor can be the same person or two different people.

10. What is the role of the Rogers Monitor?

The role of the “monitor” is not to give consent for the administration of the medication, but to monitor the administration of the medication to the Respondent, and report to the Court any problems that may come up. The monitor will be responsible for submitting a written report to the court annually.

11. How long is the antipsychotic treatment plan valid, and can it be extended?

If the Court approves the antipsychotic medications treatment plan, the Court will schedule a hearing date for a Periodic Review, generally in 12 months, and will give a date on which the treatment plan will expire. The expiration date is usually 14 months from the date of the hearing, but some Courts may make the expiration date the same date as the review date.

12. What happens at a Periodic Review hearing?

A Rogers treatment plan order has an expiration date, after which it will no longer be in effect. Each order will also contain a review date for a hearing at which a Motion to extend the treatment plan order may be presented. This hearing is called the “periodic review”, and it generally takes place annually. As long as the incapacitated person is receiving antipsychotic medication, you will need to keep the Rogers treatment plan order in effect. To have such a review, the guardian/monitor needs to obtain a new “review” affidavit from the treating clinician, and submit a monitor’s report.

In addition, the Rogers attorney needs to represent the incapacitated person, and either agree to the continuation of the Rogers order, by submitting a document entitled “Representations of Counsel,” or disagree to its continuation and attend the hearing. If the incapacitated person is no longer being treated with antipsychotic medications, the Rogers treatment plan order does not need to be extended, and you may let it expire.

13. Can a person be forced to take their medications?

Unless the Rogers order specifically limits the administration of the antipsychotic medications to voluntary or non-forcible means, it can be forcibly administered. However, this is not likely to happen outside of an inpatient hospital setting or emergency room.

14. Do I need an attorney to obtain a Rogers Guardianship?

You are not required to have an attorney to obtain a guardianship, but obtaining a Rogers treatment plan order has many steps and can be complex. It is always best to speak to a lawyer before filing court papers. Read more at “Getting Legal Help: Limited Assistance Representation” on the MGA Guardianship Information web page.

15. Where can I find more information and help?

The Massachusetts Probate and Family Court offers guardianship information and resources on its website. Go to: http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upc.html
Additionally, some divisions of the Probate and Family Court maintain their own websites with information on filing a guardianship petition. Search on-line under the county name and Probate and Family Court, i.e. Plymouth Probate and Family Court or Suffolk Probate and Family Court.

For Notice Requirements:
http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/articles-1-5-glc-190B.pdf

For the Guardian Care Plan/Report (Form MPC 821):
http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html

For the Monitor Report (Form MPC )
http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html

For Legal Services for Low Income Clients:
Contact local legal aid or Senior Partners for Justice/ Volunteer Lawyers Project. 617- 603-1700 or 1-800-342-LAWS

For Family Guardianship Clinics, offering help to low-income eligible adults in filling out the Adult Care Plan/Report & Adult and Minor Guardianship Petitions:

http://www.spfj.org/MSex_Gship.htm
http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upc.html

Joanne Moses, Esq. concentrates her practice on guardianships. Attorney Moses was Assistant General Counsel for the Department of Mental Health for over 25 years, primarily trying cases involving Rogers guardianships and commitments of seriously mentally ill persons. She volunteers with Senior Partners for Justice at the Volunteer Lawyers Project.

 

Disclaimer.The MGA website is maintained exclusively for informational purposes and does not constitute legal advice. Visitors to this web site who have a legal problem should always consult an attorney for legal advice. Viewing or using the information on the website does not create an attorney-client relationship. The guest contributor’s appearance on this website is solely for informational purposes and does not constitute a referral or endorsement of their firm or business, agency or organization. The third party web sites are listed solely as a convenience, and their listing does not imply endorsement of the agencies or organizations.