In re L.N.

173 N.H. 77

237 A.3d 222

IN RE GUARDIANSHIP OF L.N.

No. 2018-0701

Supreme Court of New Hampshire.

Argued: October 10, 2019

Opinion Issued: February 19, 2020

Richard G. Anderson Law Offices, PLLC, of New London (Richard G. Anderson on the brief and orally), for the respondent.

Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor on the brief), for Concord Hospital, as amicus curiae.

Risa Evans and John Greabe, University of New Hampshire, Franklin Pierce School of Law, of Concord (Ms. Evans and Mr. Greabe on the brief, and Ms. Evans orally), for The Warren B. Rudman Center for Justice, Leadership & Public Service, as amicus curiae¹ .

HICKS, J.

The respondent, L.N., appeals an order of the Circuit Court (Moran, J.) denying a motion to authorize removal of life support filed by her guardian. We reverse the order denying authority to remove life support and vacate, in part, the order appointing the guardian.

The trial court found, or the record supports, the following facts. On September 12, 2018, L.N. was transported to Concord Hospital after having been found unresponsive in her home. Tests indicated that L.N. had suffered a stroke. The court found that L.N., who was 69 years old at the time of the orders on appeal, had "enjoyed a full, active, independent life" prior to her stroke on September 12. Thereafter, L.N. remained in the hospital on a ventilator to assist with breathing and a nasal-gastric tube for nutrition and hydration. L.N.'s attorney informed the court in a motion for expedited hearing that "[a]fter consulting with personnel, it has been indicated that [L.N.] will probably not survive the massive stroke which precipitated this hospitalization, but there is no one with authority to act." There was no evidence that L.N. had previously executed either a living will or a durable power of attorney for healthcare. See RSA 137-J:20 (2015).

Two petitions for guardianship over the person of L.N. were filed — one by a close friend, G.H., and a second by L.N.'s friend and former employer, M.C. The court was advised that L.N. had only one known living relative, a nephew who had informed the hospital that he could not serve as L.N's guardian.

After a hearing, the court found, beyond a reasonable doubt, that L.N. was incapacitated and in need of a guardian over her person and estate. See RSA 464-A:9, III (2018). The court issued an order appointing M.C. (the guardianship order). Noting that all parties had requested a decision on whether the guardian should be granted authority to remove life-sustaining treatment from L.N., the court deferred ruling on that issue until after further hearing. The court scheduled an expedited hearing to address whether the guardian "should be awarded authority to remove life-sustaining treatment" and the guardianship order specifically stated that "[t]he guardian does NOT have the authority to remove life sustaining treatment. A further hearing will be scheduled to address that issue and a written order will issue thereafter." (Bolding omitted).

At the subsequent hearing, held on October 17, the court heard testimony from the guardian and three professionals from the hospital: Dr. Alejandro Saranglao, a pulmonary critical care specialist; Dr. Maureen Hughes, a neurologist; and Adeline Camelio, a social worker.

Dr. Saranglao testified that L.N. was not "show[ing] any signs of higher cortical functions, awareness," and he did not think she had any realistic possibility of a meaningful recovery. The "most positive outcome" in L.N.'s case, according to Dr. Saranglao, "would be persistent vegetative state."

Dr. Hughes testified that L.N. had suffered a bilateral ischemic stroke, which would tend, among other things, to "affect[ ] the nerves that maintain consciousness." She stated that L.N. could spontaneously blink, open her eyes and grimace, but that she was not reacting to her environment or communicating at even the most basic level. Dr. Hughes further opined that L.N. was unlikely to regain that function. She testified that the damage to L.N.'s brain was irreversible, and that, without L.N.'s ability to communicate, the doctors had no ability to employ rehabilitation. Finally, Dr. Hughes testified that there was no dissension among the physicians at the hospital as to the appropriate treatment in this case, and that, in the previous week, Hospital neurologists "evaluat[ed] [L.N.'s] case as presented ... by the neurologist who'd seen her most recently and the MRI reports, and [they were] all in agreement that it's a very poor prognosis for neurologic recovery."

The guardian, who testified that she had known L.N. for approximately 30 years and worked with her for 18 years, indicated that while L.N. never made a specific statement about her own end-of-life preferences, the two had had "very plain, open conversations" about the subject when people they knew had been dealing with end-of-life situations. Based upon those conversations, the guardian's sense was that L.N. "would want to be allowed to have a natural death."

At the conclusion of the hearing, the court requested that the Hospital provide relevant medical records including MRIs and CT scans that had been performed on L.N. The court also requested an opinion from the Hospital's ethics committee.

After receiving the requested documents, the court issued an order on October 22, 2018. The court concluded that the authority granted by statute to a guardian over the person "does not include the authority to remove a ward from life support without Court approval." The court also found "that a question remains at this time as to whether there is likelihood that [L.N.] would regain an ability to react to her environment, communicate, or have any degree of independent function" and, therefore, concluded that it was in L.N.'s best interests "to stay a decision on giving the guardian the authority to withdraw life sustaining treatment for an additional 20 days, to provide the Court with additional information over a 60-day post-incident period to see if there is any further improvement by [L.N.]." The court ordered the Hospital to provide neurological consult notes for the period from October 17, 2018, through November 7, 2018, and the results of any further MRIs or EEGs.

On November 19, 2018, the court issued its further order on the motion to authorize removal of life support. The court first "presume[d] that [L.N.] would have directed her healthcare providers to provide her with resuscitation, hydration and nutrition to a degree sufficient to sustain her life, subject to scenarios where the presumption would not apply." The court then found that "it has not been shown by clear and convincing evidence that [L.N.] would have rejected artificial nutrition and hydration and resuscitation. It has also not been shown by clear and convincing evidence that [L.N.] is in a permanent vegetative state or that her movements are only reflexive." The court concluded that, "in cases of doubt, the Court must assume that the patient would choose to defend life" and did "not find that [L.N.] — under the facts in this case — would choose to have life support removed and a natural death process to occur."

The guardian moved the court to reconsider. She stated that "[s]ince the last hearing, [L.N.'s] condition has stabilized. There has been no improvement, and some things have become worse with the passage of time, including her prognosis." The court scheduled a status conference to address the motion to reconsider, but subsequently cancelled the same and stayed further proceedings upon receiving notification that the instant appeal had been accepted.

On appeal, L.N. argues that the probate court erred in determining that "it had jurisdiction to make a determination as to the appropriateness, or lack thereof, of the removal of life support in the case of a patient who was in a persistent vegetative state" where "no party challeng[ed] the proposed removal." She further argues that, even if the court had the authority to exercise its discretion in this matter, its findings are unsupported by the testimony.

Our standard of review of a circuit court probate division decision is governed by statute: "The findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made." RSA 567-A:4 (2019). Accordingly, "we will not disturb the probate division's decree unless it is unsupported by the evidence or plainly erroneous as a matter of law." Hodges v. Johnson, 170 N.H. 470, 480, 177 A.3d 86 (2017).

I. Issues on Appeal

Although L.N. appears, at times, to challenge the trial court's jurisdiction, she explicitly states that her "argument was, and remains, that there is simply no statutory basis for ... a requirement" that her guardian obtain prior court approval to withdraw life-sustaining treatment. Accordingly, we read her argument not as a challenge to the trial court's subject matter jurisdiction, but rather, as a challenge to the court's statutory authority to impose such a requirement. This argument raises an issue of statutory interpretation, which is a question of law subject to de novo review. See Rogers v. Rogers, 171 N.H. 738, 743, 203 A.3d 85 (2019).

In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed by the words of the statute considered as a whole. We first look to the statutory language, and whenever possible construe that language according to its plain and ordinary meaning. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. When the language of a statute is unambiguous, we do not look beyond it for further indications of legislative intent.

Id. (citations omitted).

RSA 464-A:25 provides in relevant part:

I. A guardian of an incapacitated person has the following powers and duties, except as

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