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Matter of Roche

September 3, 1996


Higgins Cass, J.s.c.

The opinion of the court was delivered by: Cass



Plaintiff, Patricia H. Kotyk-Zalisko, Public Guardian for Elderly Adults and guardian of Clementine Roche, brought this matter before the court by notice of motion for instructions pursuant to R. 4:95-2. Plaintiff asks the court to order that an advance directive executed by Clementine Roche on May 31, 1995, is valid and binding upon herself as guardian and upon all health care providers unless otherwise revoked or amended. However, if the court will not validate the advance directive, plaintiff asks for direction as to the weight she should give to this document in making future medical decisions on behalf of her ward.


Clementine Roche was adjudicated incompetent and found specifically unable to consent to medical treatment by judgment of February 11, 1993. At the time, she was diagnosed with senile dementia with delusions. The Public Guardian was appointed for her as there were no family members willing or able to undertake this responsibility.

Mrs. Roche, who had been in Clara Maass Medical Center, was subsequently transferred to the Greenhill Nursing Home, West Orange, New Jersey, where she has remained to the present. On May 16, 1995 and May 31, 1995, she was visited by Patricia H. Kotyk-Zalisko, Public Guardian for Elderly Adults, and Judith Sakofsky-Englander, a case manager for the Office of the Public Guardian for Elderly Adults. They discussed medical preferences with her, and she said that she did not want feeding/hydration tubes or CPR under any circumstances. She also indicated that if she could not breathe properly, the doctors should try to provide oxygen to resuscitate her.

On May 31, 1995, with plaintiff and Judith Sakofsky-Englander as witnesses, Clementine Roche purportedly executed an advance directive setting forth her preference for not receiving cardiac resuscitation or artificial feeding. Plaintiff and Judith Sakofsky-Englander believe that Mrs. Roche had sufficient mental capacity to understand the consequences of executing the advance directive. Dr. Mervin Olinger, the Director of the Greenhill Nursing Home, examined her on April 4, 1996, and also asserted that she clearly understood the nature and effect of the advance directive.

Plaintiff does not argue that her ward has returned to competency, but instead asks for validation of the advance directive of this adjudicated incompetent. The issue in this case, thus, is whether a person adjudicated a mental incompetent, for whom a general guardian has been appointed, may thereafter execute a valid advance directive.


In New Jersey, competent persons are entitled to a free range of choices as to their medical care, and generally, they may choose to terminate any medical treatment, even life-sustaining medical treatment. In re M.R., 135 N.J. 155, 167, 638 A.2d 1274 (1994); In re Conroy, 98 N.J. 321, 347, 486 A.2d 1209 (1985). The right to make decisions regarding medical treatment and bodily integrity is embraced in the federal constitutional right of privacy first set forth in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), and the right of all persons to refuse life-sustaining medical treatment is included in the common-law right of self-determination. Conroy, supra, 98 N.J. at 348. The right to refuse life-sustaining medical treatment is limited, however, by four state interests: 1) preserving life, 2) preventing suicide, 3) safeguarding the integrity of the medical profession and 4) protecting innocent third parties. Id. at 348-49.

Incompetent persons have a common-law right of self-determination, the same as that of competent persons, except that the right of self-determination of adjudicated incompetents must be balanced by the court with concern for their best interests. M.R., supra, 135 N.J. at 167. This is because an adjudicated incompetent, "like a minor child, is a ward of the state, and the state's parens patriae power supports the authority of its courts to allow decisions to be made for an incompetent that serve the incompetent's best interests." Conroy, supra, 98 N.J. at 364-65. The decision maker's responsibility is to carefully balance the incompetent's right to self-determination with considerations of best interests and the protection of the incompetent's person and property. See M.R., supra, 135 N.J. at 167.

The incompetent's right to self-determination must be preserved to the extent possible. Some elderly nursing home patients, who are generally incompetent and unable to govern their own affairs, have lucid periods during which they can once again communicate their wishes clearly. See Conroy, supra, 98 N.J. at 382. Even those who are generally incompetent vary widely in their degree of alertness and in their ability to communicate. Thus, a patient may be competent to make a decision regarding a course of medical treatment "even if the patient previously had been adjudicated an incompetent and had a general guardian appointed pursuant to N.J.S.A. 3B:12-25." Id.

If a patient is not competent to make a particular decision, the guardian has a duty to determine subjectively, to the extent possible, the course an incompetent and apply a substituted judgment or subjective test. Conroy, supra, at 361-64. If some trustworthy evidence of an incompetent's intent can be found, but not enough to fully determine subjective intent, this can be taken into account in determining the incompetent's best interests, and a limited-objective test should be used. M.R., supra, 135 N.J. at 167; Conroy, supra, 98 N.J. at 365-66. Under this limited-objective test, life-sustaining treatment may be withdrawn if "there is some trustworthy evidence that the patient would have refused the treatment, and the decision-maker is satisfied that it is clear that the burdens of the patient's continued life with the treatment outweigh the benefits of that life for him." Id. at 365. If no reliable evidence of an incompetent's subjective intent exists, the decision maker should use a pure-objective test, or best interests test, under which, as in the limited-objective test, the net burdens of the patient's life with the treatment should clearly outweigh the benefits that the patient derives from life, if the guardian is to deny or withdraw treatment. M.R., supra, ...

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