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New York’s new law allowing the appointment of a guardian for a mentally retarded person, and giving the guardian the power to withdraw life-sustaining treatment under certain conditions, is constitutional, the Broome County surrogate has ruled. Surrogate Eugene E. Peckham in Binghamton issued an opinion in Matter of Baby Boy W., 2003-0788, last month explaining his ruling at a hospital hearing appointing the grandmother of a 1-month-old child to be his guardian with authority to make medical decisions under Surrogate’s Court Procedure Act (SCPA) �1750-b, a statute that became effective last March. The child was born mentally retarded due to encephalopathy and was being kept alive by a ventilator and feeding tube. His mother had died from a pulmonary embolism during labor, and the boy was born by an emergency caesarean section. A few weeks after the grandmother was appointed his guardian at the hearing in December, she authorized the hospital in Binghamton to stop the baby’s ventilator, and the child died in her arms, the grandmother’s attorney, Alyssa Barreiro, said yesterday. The child’s mental retardation was certified by two physicians, who also affirmed � as required by SCPA �1750-b(2) � that the mentally retarded child was not capable of making health care decisions, the judge said. The doctors also testified that the baby’s condition was terminal and irreversible. The certificates of the two doctors or a doctor and a psychologist, and the requirement that all medical decisions be made solely in the best interests of the retarded person, provide the basic protection for the retarded person who is not capable of making his or her own health care decisions, Surrogate Peckham said. The legislation allowing a guardian to decide whether to withdraw life-sustaining treatment was necessary because the New York Court of Appeals had ruled in a 1981 case, Matter of Storar, 52 NY2d 363, that the mother of a 52-year-old profoundly retarded man could not request the termination of blood transfusions because there was no way to produce evidence of what the man’s wishes would have been with respect to his medical treatment if he had been competent, the surrogate said. The detailed procedures set forth in �1750-b “are rationally related to the governmental purpose and provide adequate safeguards to protect the retarded from possible erroneous decisions,” he wrote. “The procedure is quite extensive and more than fair. If anyone objects to the withdrawal of life sustaining treatment, a hearing is held,” the judge added. Retroactivity Issue Surrogate Peckham declined to say whether guardians who were appointed for mentally retarded persons before the law went into effect last year had authority retroactively to decide whether to withdraw life-sustaining measures. He noted that Surrogate John A. Fusco of Staten Island had ruled in Matter of MB, (NYLJ , Nov. 7, 2003, p. 20) that the procedures could be applied retroactively, but he said that case was decided on its particular facts. “[F]or retarded persons who had a guardian appointed before the effective date of amended SCPA �1750-b, the procedures then in effect did not require the physician or psychologist to certify whether or not the retarded person could or could not make health care decisions,” Surrogate Peckham said. “Thus the retarded person had no opportunity to contest the appointment of a guardian with authority to make medical decisions and no opportunity for a hearing. . . . Since there was no procedure for the guardian to receive authority for health care decision making prior to 2002, there was not even an opportunity for due process,” he concluded. Ms. Barreiro, counsel for the grandmother, is with Hinman, Howard & Kattell in Binghamton. Albert Kukol of Levene, Gouldin & Thompson of Vestal, N.Y., was the guardian ad litem for the child.

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