Copyright © 2017 Joan E. Emery All rights reserved.
Cindy was involved in a serious car accident on April 11, 1997. She suffered severe head trauma as a result of the accident. After the accident, Cindy was in a comatose state. Cindy did not have a health care power of attorney or a living will. Since Cindy did not have any health care advance directives, her husband Tom began acting as surrogate decision maker for Cindy under the IL Health Care Surrogate Act, 755 ILCS 40/1 et. seq. In May of 1997, a dispute arose between Tom and some members of Cindy’s family, including Cindy’s brothers, Bill and Tom, Cindy’s sisters, Diane, Sheryl, and Stacy, Cindy’s mother Sally, and Cindy’s aunt Kathy. The dispute arose as a result of Tom’s statement at a May 29th family meeting that he felt it necessary to inform the family that he did not believe that Cindy’s chances were good and that he planned to have the feeding tube removed and let her go. On May 30th, Tom modified his position and told the family that he would let Cindy have 6 months or a year before he had the feeding tube removed. The other members of Cindy’s family wanted Cindy to be maintained on artificial life support for a longer period of time. On May 30, 1997, Cindy’s brother Bill filed a petition with the Circuit Court of McHenry County, asking to be appointed guardian of the person of Cindy. Tom then filed a counter-petition asking to be appointed as Cindy’s guardian. Bill later amended his petition and asked that Cindy’s sister Sheryl be appointed as Cindy’s guardian.
The trial court appointed a guardian ad litem (“GAL”). The GAL interviewed Tom and other family members, Cindy’s doctors, Cindy’s caseworkers at the Rehabilitation Institute of Chicago, reviewed Cindy’s medical records, and provided a detailed written report to the court. An evidentiary hearing was held on July 8, 1997. At that hearing, the court reviewed the GAL’s report (which recommended that Tom be appointed as guardian) and various medical records (including a videotape of Cindy in a comatose state) and heard the testimony of at least 8 witnesses. One of the most contested issues at the hearing was what medical treatment Cindy would have wanted. Tom and Cindy’s minor daughter Mandy testified that Cindy did not want any form of life support. Cindy’s mother, Cindy’s aunt, and Cindy’s 3 sisters testified that Cindy wanted to be kept alive if there was a chance that she could recover. At the end of this extensive hearing, the court found that Cindy was a disabled person and found that Tom was qualified to act as guardian. The court then appointed Tom as the plenary guardian of Cindy’s estate and person.
Other members of Cindy’s family were dissatisfied with the trial court’s ruling and so Bill filed a notice of appeal regarding the trial court’s decision. On appeal, no issue was raised regarding whether Cindy was disabled or whether Cindy needed a guardian. The only issue on appeal was whether Tom was the proper person to be Cindy’s guardian. Both Bill and Tom filed briefs on this issue with the appellate court and presented numerous arguments in favor of their respective positions. The appellate court issued its opinion on September 1, 1998. In re Schmidt, 298 Ill. App. 3d 682, 699 N. E. 2d 1123, 232 Ill. Dec. 938 (2nd Dist. 1998). In its 13 page opinion, the appellate court determined that Tom was the proper person to be Cindy’s guardian and affirmed the judgment of the circuit court. 298 Ill. App. 3d at 695.
Let’s briefly review the time line for this case. Cindy was in a serious car accident on April 11, 1997. The appellate court issued its opinion on September 1, 1998. That’s a period of 16 months. During that 16 month period, a petition and counter-petition were filed, an extensive hearing was conducted at the trial court level, comprehensive appellate briefs were filed, and oral argument was apparently also presented to the appellate court. During this process, significant time was devoted to this matter by the litigants, other family members, doctors, the GAL, and the courts. Additionally, the trial court work and appellate work would have been done by the parties’ attorneys at considerable expense. And what was the end result? Tom, as Cindy’s spouse, began acting as surrogate decision maker for Cindy after the accident. After 16 months of time consuming and costly litigation, the appellate court confirmed that Tom would continue to act as the health care decision maker for Cindy.
How could this significant stress, time, and cost have been avoided? The most effective way to have avoided this dispute would have been for Cindy to have signed a durable power of attorney for health care in which she specified her wishes regarding health care, including life sustaining treatment, and named an agent (and one or two successor agents) to carry out her wishes. As a backup, Cindy could have also signed a living will, which would have specified her wishes regarding medical treatment in the event that (1) she had an incurable and irreversible injury, disease, or illness judged to be a terminal condition by her attending physician and (2) no agent was available to act under her power of attorney for health care.
My next post should be around April 28th.
I am an attorney practicing in the Chicago area.