V I R G I N I A :
IN THE CIRCUIT COURT OF FAIRFAX COUNTY

IN RE: XXXXX XXXX, Respondent

Chancery No. 191352

BRIEF IN OPPOSITION TO MOTION TO STRIKE RELIEF REQUESTED

STATEMENT OF RELEVANT FACTS

Petitioner and Respondent are husband and wife. They have been married for more than 33 years. Unfortunately, Respondent suffers from a mental illness which interferes with her ability to care for herself or her property and to engage in a normal marital relationship. Respondent has refused for many years to accept any treatment for her condition. Petitioner brought this proceeding for two reasons: to facilitate release of a small inheritance due Respondent from her late mother in Germany and to obtain appropriate treatment for her mental illness.

Pursuant to an Agreed Order, Respondent underwent a psychological evaluation at Commonwealth Testing Center by Commonwealth Psychological Associates, PLC, under the direction of Vincent A. Thomy, a neuropsychologist. Dr. Thomy's report has been filed with the Court. Dr. Thomy diagnosed Respondent has having "Schizophrenia, Paranoid Type, Continuous". In his conclusion Dr. Thomy states:

Based on his own experience in living with his wife and her illness and the conclusions of Dr. Thomy, Petitioner is seeking appointment as guardian of the person of his wife in order to place her in an in-patient program where she can receive treatment for her illness.

ARGUMENT

I. A Court Appointed Guardian of the Person Has the Authority To Authorize Involuntary Commitment of his Ward

Petitioner seeks appointment as guardian of the person of his wife on the grounds that she is an incapacitated person as defined in §37.1-134.6 of the Code of Virginia.[1] If the Court determines on the basis of clear and convincing evidence that Respondent is in need of a guardian, then Petitioner, or some other suitable person, will be appointed as the guardian of Respondent's person. The person appointed as guardian will have the authority to commit Respondent and direct treatment of her mental illness, notwithstanding her objection.

The duties and powers conferred on a guardian are stated at §37.1-137.1 of the Code. The guardian stands in a fiduciary relationship with the incapacitated person. The guardian is directed to "consider the expressed desires and personal values of the ward to the extent known, and shall otherwise act in the ward's best interest and exercise reasonable care, diligence and prudence." The statute very clearly states what the limitations are on a guardian's authority; that is, what decisions require prior court authorization. The guardian may not change the ward's residence to another state, terminate or consent to a termination of the person's parental rights, or initiate a change in the person's marital status without prior court permission. The statute places no limitations on the type of medical treatment a guardian may authorize for his ward.

A cardinal rule of statutory construction is that a statute be construed from its four corners. Commonwealth Natural Resources, Inc. v. Commonwealth, 219 Va. 529, 536, 248 S.E.2d 791 (1978). ) If a statute is clear and unambiguous, a court will give the statute its plain meaning. Loudoun County Department of Social Services v. Etzold, 245 Va. 80, 84, 425 S.E.2d 800 (1993). The guardianship statute clearly states what actions by the guardian require prior court approval. Permission for medical treatment, including mental illness, is not among those actions requiring prior court authorization. Imposition of the requirements of Code §37.1-67.3 on a guardian would amount to legislating by the Court.

II. Code §§37.1-67.3 and 37.1-134.21Are Inapplicable

Where There Has Been An Adjudication of Incapacity

In general, a mentally competent adult has the right to refuse medical treatment. Cavuoto v. Buchanan County Dept., 44 Va. App. 326, 330, 605 S.E.2d 287, 288-289, citing Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 262 (1990). "However, this fundamental liberty interest must be balance with the State's interests in protecting persons who cannot make informed health decisions, either because they are incapable of making such decisions or incapable of communicating such decisions." Id. The procedures in §§ 37.1-67.3 and 37.1-134.21 of the Code are intended to protect this constitutional right to determine what medical procedure a person may be subjected to over his or her objection. They are intended to address a specific treatment. The guardianship statute at §37.1-134.6 et seq. also is intended to protect a person's liberty interest, and has the same protections and due process requirements.

The grounds for an involuntary commitment under §37.1-63 - substantially unable to care for oneself - are the same grounds that if proven will result in an appointment of a guardian under §37.134.6 et seq. It makes no sense that having once established an inability to care for oneself in the context of the appointment of a guardian; the very same issue must be relitigated in order for the guardian to carry out his duty to seek appropriate care and treatment for his ward.

The Code provides that a person faced with possible involuntary commitment first must be offered an opportunity for voluntary admission and treatment. Code §37.1-67.3(B). A person who has been adjudicated incapacitated, as a matter of law, cannot opt for voluntary commitment because by law he no longer has authority over his own person. On its face it is apparent that provisions of Code §37.1-67.3 were not intended to apply to a person with a court appointed guardian.

Code §37.1- 134.21 provides a procedure for forcing the provision, withholding or withdrawal of a particular medical procedure on a person who is objecting to the proposed action when "there is no legally authorized person available to give consent". Section 37.1-134.21(H)(1). Where the person in question has a court appointed guardian, Section 37.1-134.21 will never be applicable. A person who has been adjudicated incapacitated is legally unable to give consent to a course of medical treatment. Where that person has a court appointed guardian, the legal authority to consent to a course of medical treatment for the incapacitated person has been bestowed on the guardian. Thus, §37.1-134.21 is inapplicable where a court appointed guardian of an incapacitated person is directing the commitment.

Section 37.1-134.21 allows a court to authorize treatment for a mental or physical disorder where the person "is either incapable of making an informed decision on his own behalf or is incapable of communicating such a decision due to a physical or mental disorder...". A person who has a court appointed guardian has been determined to be incapable of making an informed decision on his own behalf. Because of this incapacity, the need arises for someone else to consent on the incapacitated person's behalf. When no such person exists, then the Court, pursuant to §37.1-134.21 can direct the treatment. Code §37.1-134.21(H)(1.); Mullins v. Commonwealth, 39 Va. App. 728, 731, 576 S.E.2d 770 (2003), where the Court affirmed the trial court's directing treatment of a physical ailment of Mullins, who was on an involuntary commitment in a mental hospital, in the absence of any other person to give consent. See also Cavuoto, supra, reversing the trial court's order for a medical examination where the Respondent was found to be capable of making an informed decision about her healthcare. Where there is a court appointed guardian, there is someone who is legally authorized to give consent to the treatment. The provisions of §37.1-134.21 of the Code are inapplicable.

Respondent's suggestion that there is a conflict between the two statutes which must be reconciled is without merit. The liberty interests of a person who is alleged to be incapacitated are equally protected. In order to deprive a person of his right to decide what medical treatment he will be subjected to, §§37.1-67.3 and 37.1-134.21, or to deprive a person of all control over his person, §37.1-134.6 et seq., the court is required to apply statutorily prescribed standards of due process.[2] Indeed, §37.1-134.6 et seq. requires that the Court determine by "clear and convincing evidence" that the Respondent is incapacitated. Code §37.1-67.3 does not even articulate an evidentiary standard. In sum, once a guardian has been appointed for a person, his or her liberty has already been taken away. There is no need for further court proceedings.

CONCLUSION

Based on the foregoing it is requested that this Court deny Respondent's Motion to Strike Relief Requested.

YYYY YYYYYYYYY YYYY

By Counsel


JEAN GALLOWAY BALL, P.L.C.
Jean Galloway Ball
Certified in Elder Law by the
National Elder Law Foundation
Jean Galloway Ball, PLC
Suite 150, 10306 Eaton Place
Fairfax, Virginia 22030
Tel: 703/359-9213
Fax: 703/591-0553
www.uselderlaw.com
________________________________

[1] "Incapacitated person" means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian..."

[2] Both statutes require advising the Respondent of his right to counsel, to present defenses, witnesses, expert testimony, to be present at the hearing and to testify, to cross examine witnesses, and to a jury trial. See §37.1-67.3(D) and §37.1-134.9(B), §37.1-134.10, and §37.1-134.12.