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.
