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New York’s new law giving a guardian for a mentally retarded person the power to make decisions about life-sustaining treatments applies whether the guardian was appointed before or after the statute became effective, the Staten Island, N.Y., surrogate has ruled. Richmond County Surrogate John A. Fusco ruled from the bench on Oct. 23 that the guardian of a 42-year-old man in an irreversible vegetative state could decide whether a respirator and feeding tube should be removed. The judge noted in his written ruling last week, Matter of MB, that the man, whose name was withheld in the decision, died within hours of the termination of treatment. He had been suffering from pneumonia, hypertension and hypoxia. Mr. B.’s guardian, who was also his brother, had been appointed on Jan. 24, a few weeks before new provisions of the Surrogate’s Court Procedure Act became effective on March 16, 2003. All the parties involved in the proceeding before Fusco, including the Mental Hygiene Legal Services (MHLS) acting on Mr. B.’s behalf, agreed that it would be in his best interests to remove the respirator and feeding tube. But the agency argued that a specific order was required to give the guardian power to act because his authority predated the law that granted new powers. The Health Care Decisions Act was passed in 2002 to deal with the situation illustrated by the Court of Appeals case Matter of Storer. In that case, the mother of a mentally retarded man could not direct a hospital to stop blood transfusions that were keeping him alive because such a person never had the capacity to express his wishes. Surrogate Fusco said the drafters of SCPA �� 1750 and 1750-b had provided for the application of the new laws to guardianship appointments that predated its effective date. SCPA � 1750 provides that when a guardian is appointed for a mentally retarded person, the application shall include a specific determination by two qualified health-care professionals as to whether the person has the capacity to make health-care decisions. The last sentence of � 1750 (2), however, provides that “the absence of [such a] determination in a case in the case of guardians appointed prior to the effective date of this subdivision shall not preclude such guardians from making health care decisions,” the judge noted. “The statute further provides that such health care decisions ‘may include decisions to withhold or withdraw life-sustaining treatment,’ ” he added. Newly enacted � 1750-b, also effective March 16, provides that if the guardian chooses to end life-sustaining treatment for a mentally retarded ward, the ward’s inability to make medical decisions must be confirmed by two physicians, who must also determine that the medical condition is terminal or irreversible and imposes an extraordinary burden on the ward. NO STAY SOUGHT Dennis Feld, deputy director of the Mental Hygiene Legal Services for the Appellate Division, Second Department, said Tuesday the agency told Mr. B.’s family after Fusco’s ruling from the bench that it would not seek a stay of the order on compassionate grounds. But the agency is now considering an appeal of the ruling on the grounds that the question of the retroactive application of the statute will reoccur in other situations, he said. Robin A. Silverman and Lisa Volpe appeared for MHLS before Fusco. John Peter Sipp of Staten Island was counsel for Mr. B.’s guardian. Helene Georgis-Corey appeared for Staten Island Hospital, and Assistant Attorney General Leonard Cohen represented Attorney General Eliot Spitzer.

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