American law allows certain individuals-guardians-to exercise dominion over others-wards or incapacitated persons ("IPs")-in some circumstances.' This kind of control is permissible and often necessary because the IP is unable to perform certain tasks.
The guardian's decision-making may fulfill many needs of the IP,such as well-reasoned decisions involving investments, day-to-day activities, and medical choices.
Depending on the state statutory and common law, a guardian may be given the right to make medical decisions for the IP.2 This right may include the ability to consent to psychotropic medications for the IP, even when the IP pronounces her will not to take them.
This ability of a guardian to consent to the administration of psychotropic medications for her ward has been a source of controversy in New York.4 It seems obvious that New York's legislature intended that guardians have the ability to consent, as this right is expressly given in the Mental Hygiene Law.5 Nevertheless, the issue has arisen in New York State courts. Further complicating the issue, various jurisdictions have ruled differently on whether a guardian has the right to so consent.6 Within the Second Department alone, there are two contradictory Supreme Court decisions.
The legislature has made it clear through its enactment of Mental Hygiene Law sections 81.22(a)(8) and 81.01 that it intended a guardian's potential powers to include the power to consent to administration of psychotropic medication.8 The New York Court of Appeals should give credence to the legislative statute, and hold that in certain circumstances, guardians can be given the right to consent to psychotropic medication for their IPs. This right of a guardian should not be unlimited, but it must be among the rights that a court can bestow, in order to best protect the IP.
Full Paper and Source:
The Age-Old Dilemma: Mandated Administration for Psychotropic Medication for Wards