Minnesota Supreme Court ponders guardians' role

For 30 years, Minnesota has given guardians the legal authority to have their wards disconnected from life-support technology.

But that system has not been without critics. On Monday, the Minnesota Supreme Court heard impassioned arguments in a packed courtroom at the State Capitol about whether court approval should be needed for such end-of-life decisions.

When attorney Bob McLeod said that the current system has worked well and without controversy, Justice Barry Anderson cut him off, saying that an absence of complaints doesn't necessarily mean it's working.

McLeod persevered, saying that court approval could hamper and add anguish to an already difficult process. "Guardians act in the best interest of the ward," he said. "It's what they need to do. It's what they must do."

Guardian cases rarely land before the state high court, and the justices' intensity and interest showed during the hearing, which focused on the case of 57-year-old Jeffers Tschumy.

Tschumy, a mentally disabled man who had been under guardianship since 2008, suffered severe brain damage after he choked on food in 2012.

He had no family and no health care directive. Allina Health System requested that a Hennepin County District judge allow him to be removed from life support, either by clarifying that Tschumy's guardian, Joseph Vogel, had the right to make the decision or by issuing an order from the bench. Judge Jay Quam authorized the life-support cutoff but denied Vogel's request for the sole power to make that decision.

Tschumy died in May 2012, a few days after Quam's order was issued.

Last summer, the state Court of Appeals reversed Quam's ruling, reasoning that end-of-life decisions shouldn't be dictated by the court.

On Monday, McLeod asked the justices if "we want to start a new track because of one unfortunate case."

Justice David Lillehaug asked McLeod if the door wouldn't be opened for every hospital to go to court over the issue if the decision is left solely in a guardian's hands.

"The best treatment isn't provided in the courtroom," McLeod responded. "It should be between the guardian and doctor."

More than 12,000 Minnesotans under such guardianship don't have health care directives. State law empowers guardians to give "any necessary consent to enable, or to withhold consent for, the ward to receive necessary medical or other professional care, treatment or service." Guardians do need a judge's consent for psychosurgery, electroshock, sterilization or experimental treatment.

Many states are moving toward affirming guardians' rights involving termination. All around the nation, said Chief Justice Lorie Gildea, painful decisions are being made with no court involved.

"Why is the court system better equipped to look at all the factors over the medical community?" she asked.

Mike Biglow, the attorney appointed to represent Tschumy's interests, said that it isn't exclusively a medical decision to take a person off life support and that powers granted to guardians don't specifically address that.

About halfway through the hearing, Justice David Stras wanted to know what interest the guardian still had in this case, since Tschumy has died. "An appeal should have been made as soon the District Court made its ruling," he said. "That triggered this controversy."

Justice Anderson raised concerns about the broad authority given to guardians.

"There are no checks by anybody else," he said. "The power is pretty significant. I wonder if the Legislature intended to give that much power."

McLeod countered that guardians must file frequent reports on their wards and that any concerns can be brought to court. "Guardians aren't acting in a vacuum," he said.

Biglow suggested that the justices consider developing some guidelines.

"Right now, the court really has no knowledge when end-of-life decisions are made," he said. "The court should know about its wards."

The final comment came from the court's newest justice, Wilhelmina Wright, who said, "This sounds like a legislative and not a court issue."

And indeed, the Legislature may take up the issue this session. It's not clear when the state Supreme Court might rule.

After the hearing, McLeod said he thought the justices thoroughly addressed critical issues on both sides. "As a lawyer, I really appreciated it," he said. "They figured out exactly what to address."

David Chanen • 612-673-4465