Every day judges in the Probate and Family Courts appoint guardians of minor children if their parents are deemed unfit, unavailable or deceased. Once appointed, a guardian has almost the same powers and responsibilities of a parent regarding a child’s support, care, education, health and welfare. The guardian can make many routine decisions about the child’s daily life, without requiring further intervention by the probate court.

A guardian lacks the authority to consent to certain kinds of intrusive, serious, experimental or extraordinary medical care. A guardian can only make “extraordinary medical decisions” upon an explicit court order authorizing the specific treatment at issue. The Massachusetts Supreme Judicial Court has determined that decisions involving highly intrusive medical procedures and treatment of minor children and disabled or incompetent adults under a guardianship must be made by a probate court applying a “substituted judgment” doctrine.
The doctrine originated over thirty years ago with a series of cases involving who had the authority to make medical treatment decisions for incompetent institutionalized adults. The Court began with the premise that all citizens, regardless of competency, have a constitutional right to make a decision to accept or reject treatment by their doctors and then examined how to make that right meaningful for someone who lacked the capacity to exercise it.

In a substituted judgment proceeding, the court attempts to “stand in the shoes” of the incompetent person and determines what he/she would choose to do if competent. Some of the factors that the court must consider include the prognosis with or without the proposed treatment, the complexity, risk and novelty of the proposed treatment, side effects, consent of the guardian and the standards of good medical practice. Since minor children are deemed by virtue of their age to be incompetent, the substituted judgment doctrine applies to children under a guardianship.

There is no list of extraordinary procedures mandated by statute, allowing for flexibility as medical treatments and technologies evolve. However, the most common treatment that requires a substituted judgment is the administration of antipsychotic medication. Other procedures include the provision or withdrawal of life prolonging treatment, sterilization, abortion, electroshock therapy, psychosurgery and other invasive procedures such as a stem cell transplant.

To initiate the substituted judgment process, a guardian must petition the probate court through the substituted judgment process, asking the court to authorize (or decline) a specific treatment or procedure. An attorney is appointed by the court to represent the child’s interests and report to the court after conducting an investigation, after which a hearing is held. The court is not concerned with what is in the child’s “best interest” nor is the court obligated to support the position of the parties involved, namely the guardian, the child’s attorney or the medical professionals. Instead, the court must render an independent determination, substituting its judgment on behalf of the child. With the exception of the most urgent extreme cases, a substituted judgment proceeding can take months to complete and the guardian is bound by the court’s decision.