In the Matter of Guardianship of L.W.

While this case pertains explicitly to Wisconsin and may not carry precedence in other states, it very clearly states some criteria and guidelines for considering best interests. Though the criteria and guidelines for considering best interests vary from state to state, these particular guidelines and criteria may be useful for decision-makers and ethics committees to consider as a model process. The Wisconsin Supreme Court held that an incompetent individual in a persistent vegetative state has a constitutional right to refuse all life-sustaining medical treatment, including artificial nutrition and hydration. The Court emphasized that its decision only pertained to wards in a persistent vegetative state with no reasonable chance of recovery to a cognitive and sentient life, a condition which must be determined by the individual's attending physician, together with two independent neurologists or physicians. A guardian may exercise the ward's limited right to refuse, where the ward is in a persistent vegetative state, by applying objective criteria to determine whether withholding life-sustaining medical treatment, including feeding tubes, is in the ward's best interests. Criteria the guardian must consider and the procedure for the guardian to follow are:

1. If the ward has previously clearly stated his or her wishes, either to withhold or remove life-sustaining treatment, or not to remove or withhold life-sustaining treatment, the guardian must follow the wishes of the ward.



2. If the ward has not previously expressed his or her wishes regarding the treatment, the guardian must presume that continued life is in the best interest of the ward. This presumption can be overcome if the guardian determines in good faith that withholding or withdrawing treatment is in the ward's best interests by considering the following four factors:
   1. The degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment;
   2. The life expectancy and prognosis for recovery with and without treatment;
   3. The various treatment options;
   4. The risks, side effects, and benefits of each of those options.



3. The guardian must assess these factors from the standpoint of the patient, and should not substitute his or her own view of the quality of life of the ward.



4. The guardian should also consider the opinion of an ethics committee, if one is available at the facility where the ward is receiving medical care.



5. The guardian should consider the opinions of a spouse, next of kin or an individual who has been a close friend or associate for a significant period of time.

Further, a guardian must adhere to the following procedures:

6. Notice of the decision to withhold or terminate life sustaining treatment must be given to any "interested parties," including: the ward; the ward's spouse; next of kin; an individual who has been a close friend or associate for a significant period of time; the ward's physician and the facility/agency where the individual is receiving his or her medical care; the individual's guardian ad litem, if any; an agent under a durable power of attorney for health care; and any official or representative of a public or private agency, corporation or association concerned with the ward's welfare.



7. "Formal" notice is not required, but the notice must inform the interested parties of the decision and allow adequate time for parties to respond.



8. If none of the above interested parties objects, the guardian may make the decision without a court hearing.



9. If an interested party objects, the court will presume that continued life is in the best interests of the ward, and the burden will rest on the guardian to show both the existence of a persistent vegetative state to a high degree of medical certainty and that the decision to withhold or withdraw treatment is in the ward's best interests and is being made in good faith.

[Source: In the Matter of Guardianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992) & Wisconsin Coalition of Aging Groups].

Principles & Concepts: autonomy, beneficence, human dignity, substituted judgment, futility, best interests, proportionate/ disproportionate means, surrogate decision-making.

Return to All Cases.

Return to For the Public - Table of Contents

Return to For Affiliates - Table of Contents

© 2007 Ascension Health