Guardianships with Rogers Authority

Kristen R. Testaverde, Esq. 

As discussed in Parts 1 and 2 of the “Other Parts of Your Estate Plan” posts, everyone should have Power of Attorney and a Health Care Proxy as part of their estate plan.  A Power of Attorney gives a nominated person the ability to handle your finances in the event you become legally incapacitated and cannot act on your own behalf.  A Health Care Proxy gives a nominated person the power to make medical decisions on your behalf.  Lack of either could run your family members through expensive court proceedings in the event you become incapacitated, as a Conservator will have to be appointed to care for your finances and Guardian will have to be appointed to care for your health. 

Here, I would like to address an aspect of Guardianships called Guardianships with Rogers authority.  The term Rogers comes from a Massachusetts case decided in the 1980s where the administration of antipsychotic medications to individuals committed to health care facilities was questioned.  The court system became involved through a class action suit where plaintiffs committed to institutions challenged the institutions’ practice of medicating patients against their will.  Ultimately, the court found (among other important rules) that ”court approval is mandatory before forcible medication of an incompetent patient with those drugs in a nonemergency situation can take place.”

I see this play out in practice often where a patient is in a hospital and receiving antipsychotic medications as part of his/her treatment there.  When treatment ends, the family often wants to move the patient to a nursing home or other rehabilitative facility, but the facility is unwilling to accept the patient without court-approved Rogers authority to administer the antipsychotic medications, as a way to protect the facility’s interest.  While the family hires an attorney who works to receive court approval, the patient remains in the hospital, often unnecessarily.   

A valid health care proxy which does not limit decisions regarding antipsychotic medications helps to solve this problem.  Rogers circumstances are another reason why estate planning beyond the will is so important for people of all ages. 

Questions or Comments?  Leave a post or contact Attorney Testaverde at krtestaverde@gmail.com 

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