Question: My sister is 62 years of age and has been a “total care” individual since she suffered severe strokes 15 years ago. Her husband divorced her after he got to the point he could not cope with caring for her. Therefore, at ages 77 and 78, my parents began caring for her. They become her legal guardians through the court because she had no health care documents.

When they both died last year (I am convinced because of the stress of keeping her at home), I was appointed her legal guardian because her children live overseas, and I am her only sibling. Because I could not keep her at home, I finally found a nursing home. She receives Social Security Disability, Medicare, and has qualified for Medicaid. She does not know me or anyone else. She can eat if someone feeds her. She can’t walk, but will seemingly stare at television with a blank look on her face.

Last week, she began to choke while eating, aspirated, and ended up with pneumonia. Her breathing was labored, and the doctors at the ER decided she needed a ventilator to breathe. I objected, but was ignored by the hospital.
I was irate that they would not listen to me, and went back to our lawyer who went to court to get me the authority to refuse all medical treatment, but the judge denied my request because she said my sister did not have an end of life illness and was not vegetative. I truly don’t understand why my lawyer was not successful and why the judge didn’t understand the situation.

Answer: From the brief facts you provided, it appears that the judge followed the law of your state and is most probably correct. First, the appointment of a guardian does not automatically bring with it the ability to refuse life sustaining medical treatment where the ward is neither in an end of life or vegetative state.

While your concerns about your sister seem to be in good faith, we are sure you can understand that if guardians were automatically cloaked with this authority, such could lead to situations where guardians could terminate the life of the incompetent ward at will without whenever deemed fit by the guardian without court approval
Some courts have determined that where a non-reversible incompetent person is neither in an end of life situation nor persistently vegetative, a guardian may seek to refuse life maintaining medical by proving to a judge by clear and convincing evidence that death is in the incompetent person's best interests. This would include trustworthy medical testimony documenting the incompetent person’s permanent condition and current state of decline and pain so that the court could determine that continuing life would be inhumane and not in the best interest of the ward.

Here, you may not have provided the court with enough evidence of your position. Since your sister’s aspiration pneumonia is a curable medical condition requiring a mechanical ventilation for a short period of time, it appears you have failed to prove your position. Go back to your lawyer and see if there is other evidence that could change the judge’s mind. Keep in mind that the hurdles you must leap are the medical community’s ethical obligation to treat and your state’s vested interest in preserving life.