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 out-of-the ordinary medical treatment, such as treatment with antipsychotic medications, a guardian must obtain the court’s permission. In a Rogers guardianship hearing, the court is being asked to authorize extraordinary treatment, such as administering antipsychotic medications for an incapacitated person. Joanne Moses, Esq. offers detailed information 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?
A Rogers guardianship is one in which the guardian obtains the court’s permission to have treatment with antipsychotic medications administered 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.
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