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What Medical Procedures Can Guardians Authorize For Developmentally Disabled Individuals In Michigan?

by | Feb 18, 2021 | Guardianships And Conservatorships |


Plenary guardians appointed by Michigan probate courts to developmentally disabled individuals have the authority to consent to most medical procedures on behalf of their wards without the judge’s permission.  However, this authority is not unlimited, and guardians can get into legal trouble if they authorize an extraordinary procedure that requires prior judicial consent.  Guardians must take great care to ensure they are not running afoul of Michigan law.

The liability for guardians of developmental disability individuals regarding medical procedures or treatment is defined under Michigan statute:

  • “A guardian, temporary guardian, plenary, partial, or standby guardian shall not be liable for civil damages by reason of authorizing routine or emergency medical treatment or surgery or extraordinary procedures when previously ordered by the court for his or her ward if the guardian acted after medical consultation with the ward’s physician, acted in good faith, was not negligent, and acted within the limits established for the guardian by the court.” MCL 330.1629(1).
  • “A guardian, temporary guardian, plenary, partial, or standby guardian who has been authorized by the court to give medical consent, shall not be liable by reason of his or her authorization for injury to the ward resulting from the negligence or other acts of a third person.” MCL 330.1629(2).
  • “Routine medical services do not include extraordinary procedures. Extraordinary procedures includes, but is not limited to, sterilization, including vasectomy, abortion, organ transplants from the ward to another person, and experimental treatment.” MCL 330.1629(3).

The most common extraordinary procedure that guardians seek for their wards is sterilization.  They often have fears that if the ward engages in sexual activity, he or she will bring a child into the world that he or she has no ability whatsoever to provide proper care for.  Some guardians even base their decision on the conception that developmentally disabled wards can only give birth to other developmentally disabled people, therefore putting a burden on both family and society.  Indeed, it was not uncommon to routinely sterizilize developmentally disabled persons in the past as a matter of public policy.  To protect wards from such arbitrary decisions, the Michigan Legislature deliberately removed the ability of guardians to consent to these types of procedures unilaterally.

However, this doesn’t mean that guardians are without the legal means to obtain the proper authorization.  In the landmark case of In re Wirsing, 456 Mich 467; 573 NW2d 51 (1998), the guardian sought permission from the Genesee County Probate Court to consent to a tubal ligation of the ward, her 18-year old developmentally disabled daughter, for birth control purposes.  The Michigan Protection and Advocacy Service intervened in the case and argued that the probate court did not have any authority to grant such a request.  The probate judge ultimately granted the order giving consent, finding after an extensive evidentiary hearing that the petitioner had the ward’s best interests at heart, that the ward did not have the ability to understand sexual intercourse or pregnancy, that the ward did not understand the birth process or have the ability to care for the child, that the ward did not have the ability to understand alternatives such as using contraceptives, and that the procedure would be less traumatic to the ward than pregnancy.  The Michigan Protection and Advocacy Service appealed.

The Michigan Supreme Court determined that probate courts do have the power to order extraordinary medical procedures under MCL 330.1629 and established a process for when this is appropriate:

  • “We have previously recognized that, where an individual is unable to exercise an important right, a substituted-judgment analysis may be appropriate. In re Martin, 450 Mich. 204; 538 N.W.2d 399 (1995). In Martin, we also noted that in those cases, such as this, in which a person has never been able to make a decision in the context of an important right, an objective best-interests standard might be appropriate. Id. at 223, n 15.”
  • “In this case, the ward is unable to choose for herself whether she wishes to become pregnant. To deprive her of the option of sterilization, in addition to affronting the statute, would make the choice for her, and make the same choice for each ward, regardless of the circumstances. This result comports neither with the statute nor the best interests of the individual ward.”
  • “What the Legislature has instead provided is a mechanism designed to encourage a guardian, upon concluding it is in the wards interests, to apply to the probate court for an order authorizing consent for an extraordinary procedure such as sterilization. The probate court shall then evaluate the case, and, if it is persuaded and finds that the procedure is in the ward’s best interests, order the authorization of consent.”
  • “We find that to be exactly what happened here. The guardian articulated reasons for believing this procedure was in the ward’s best interests, and supported those reasons with evidence. The probate court concluded that such a procedure indeed was in the ward’s best interests and authorized it. In these matters, where the ward cannot exercise personal judgment, the decision passes to the guardian. In this case, the probate court appropriately evaluated the evidence to insure that the decision made was indeed in the ward’s best interests.”
  • “We specifically decline to hold that a “clear and convincing” evidence standard is required in these matters, entrusting the probate court to exercise its sound discretion in deciding whether an extraordinary procedure is in the wards best interests. A review of the record leaves us convinced that the probate court carefully and thoughtfully carried out its role and made a well-reasoned decision.”
  • “Accordingly, we hold that the probate court has jurisdiction to hear an application by a guardian for authorization to consent to an extraordinary procedure under MCL 330.1629; MSA 14.800 (629), including sterilization, and to order such authorization if it determines the procedure is in the wards best interests.” In re Wirsing, 456 Mich 467, 475-476; 573 NW2d 51 (1998).

The consequences for a guardian (or even the medical providers) who undertake sterilization or other extraordinary procedure without court approval can be severe.  In Morgan ex rel Ray v Shah, unpublished per curiam opinion of the Court of Appeals issued February 12, 2019 (Docket No. 341846), the guardian took the ward, who was both his son and a developmentally disabled adult, to a physician to perform a vasectomy.  Plaintiff, who was the ward’s mother, contends that the guardian failed to seek a court order and authorizing the procedure and that the physician lacked proper informed consent for the surgery.  As a result, the physician was sued for medical malpractice.  Interestingly, the plaintiff’s expert witness who endorsed the Plaintiff’s position admitted during a deposition that he did not know about MCL 330.1629 prior to being briefed by legal counsel.  The expert nevertheless concluded that the standard of care prohibited the physician from sterilizing the ward solely based on the guardian’s consent.

The physician’s legal counsel initially filed motion for summary disposition for summary disposition, contending that MCL 330.1629 applies to guardians, and not to physicians.  The plaintiff asserted that her claim was based on medical malpractice concerning the applicable standard of care, not the violation of MCL 330.1629.  The circuit court agreed and denied the motion for summary disposition, finding that the expert witness’s affidavit created a question of fact.  The physician’s legal counsel then filed a motion in limine to exclude the expert witness’s testimony.  The circuit court granted the motion “based on its perception that [the expert witness] did not know what the standard of care required in 2014, when the surgery was performed, as he was unfamiliar with MCL 330.1629 at that time.”  The circuit court believed that “it was not the standard of care that a doctor ha[d] a duty to go to court to make sure that there’s a court order that allow[ed] this procedure.”

The Michigan Court of Appeals disagreed and found that the trial court’s decision on the motion in limine was erroneous because “the relevant rule of evidence permits an expert to enlarge his or her sphere of knowledge about the standard of care before testifying.”  It did not matter that the expert witness was unaware of the law in 2014.  In fact, the appellate court found that, “[b]efore testifying as to the applicable standard of care, an expert is expected to test the validity of his or her first-impression opinions by engaging in some research”, and “[t]his often involves consultation with other physicians and consideration of the medical literature.  There was no fault with the expert witness’s consideration of MCL 330.1629 during the time that he formulated his expert opinion in this case.  Likewise, the Court of Appeals rejected the defendant’s claim that the physician was entitled, as a matter of law, to rely on the consent of the guardian to perform the vasectomy and the defendant’s claim that MCL 330.1629 does not govern the physician’s conduct.  The expert witness expressed that the standard of care required the physician to “[r]efrain from performing an elective vasectomy on a developmentally disabled adult under the care of a Guardian, without the procedure having been authorized by the court.”  As a result, the case was remanded back to the circuit court for further proceedings and the expert witness is permitted to testify as to common-law standard of care.

MCL 330.1629 imposes responsibilities on plenary guardians of developmentally disabled persons and, in some cases, the physicians providing care to them.  For extraordinary medical procedures including, but not limited to, sterilizations, guardians should always seek the permission of the probate court first.  In all circumstances, guardians and third-parties relying on their representations should seek the advice of skilled legal counsel first.

If you or a loved one have any questions about guardianships over developmentally disabled adults or need legal representation, then do not hesitate to contact the experienced probate attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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