In Massachusetts, as in most states, a child’s 18th birthday signifies the moment in which he or she is legally presumed to be competent to make his or her own medical, financial, and educational decisions. They can do anything, including enlisting in the military, except purchase alcoholic beverages. At that point, parents of children who have severe cognitive impairment often opt to become their child’s legal guardian. While obtaining guardianship can be complicated, this article concerns a special type of guardianship, called a Rogers guardianship, which is even more involved.
Is a Rogers guardianship necessary?
A Rogers guardianship, named after the 1983 Supreme Judicial Court case in which the procedure was established, is required if the guardian needs to make decisions involving “extraordinary” treatments. Parents of children turning 18 will need to obtain a Rogers guardianship if their child is taking some type of antipsychotic medication (not unusual in the autism population, for example). Rogers guardianships also are necessary for things such as sterilization, abortion, electroconvulsive therapy, psychosurgery and the removal of artificial nutrition or hydration.
The following are in the class of antipsychotic medications that require a Rogers guardianship. (Note that some psychotropic drugs, such as antidepressant medications or mood stabilizers, are not antipsychotic medications, and do not require specific court authorization.)
“Typical” Antipsychotic Medications:
Haldol (haloperidol), Haldol Decanoate (haloperidol decanoate), Loxitane (loxapine),Navane (thiothixene), Prolixin (fluphenazine), Prolixin Decanoate (fluphenazine decanoate), Stelazine (trifluoperazine), Thorazine (chlorpromazine), Trilafon (perphenazine).
Abilify (aripiprazole), Clozaril (clozapine), Geodon (ziprasidone), Invega (paliperidone),Risperdal (risperidone), Risperdal Consta (risperidoneconsta LAI), Seroquel (quetiapine fumarate), Zyprexa (olanzapine).
The National Institute of Mental Health publishes an official list of medicines that are considered antipsychotic.
What is required in order to obtain a Rogers guardianship?
The petitioner must file, among other things, a Clinical Team Report that confirms that the individual is intellectually disabled, which must be completed and signed by (i) a physician; (ii) a licensed psychologist; and (iii) a social worker, each of whom is experienced in evaluating of an intellectually disabled person. Obtaining signatures from all three, which tends to be the most burdensome part of the process, is the first step, as the Clinical Team Report must be submitted to the court at the time the guardianship petition is filed. If possible it is usually best to file for guardianship while the child is still in school, as the school often helps obtain the Clinical Team Report.
A number of additional steps are required when a Rogers guardianship is sought. While the specific procedure for obtaining a Rogers guardianship is beyond the scope of this article, one requirement is a Clinician’s Affidavit as to Competency and Treatment, which must be submitted and shared with all parties prior to the hearing seeking a Rogers order. (At the time of the hearing, a proposed Treatment Plan and proposed Findings of Fact and Conclusions of Law also must be filed.) The Clinician’s Affidavit must be completed by a licensed physician, psychiatrist, or certified psychiatric nurse clinical specialist who treats the respondent, or has evaluated the respondent for the purpose of filling out the affidavit. It must provide enough information for the Court to determine what treatment is being proposed, the respondent’s current condition, and the respondent’s stated preferences with regard to the proposed treatment.
The Guardian’s Care Plan
As with regular guardianships, once a Rogers Order is obtained, the guardian must file a Guardian’s Care Plan/Report within 60 days after the appointment as a permanent guardian, and annually thereafter. In addition, in the case of a Rogers guardianship, the Court also appoints a person to monitor the administration of the antipsychotic medications pursuant to the treatment plan. This person is called a Rogers’ Monitor. (The Rogers guardian and the Rogers Monitor can be the same person or two different people.) The Rogers Monitor must annually file a Roger’s Monitor Supplemental Report to the Guardian’s Care Plan/Report. The form requires the Rogers guardian to, among other things, list the antipsychotic medications that the incapacitated person is taking, the date that the guardian last communicated with the treating physician, and if it was not in the last six months, to “detail the attempts you made to contact the treating physician during that time period.”
For busy parents, being required to go through the Rogers guardianship process is not a welcome activity. However, keep in mind that Massachusetts courts require these “extraordinary” measures in order to protect patients’ rights and make sure that patients (especially those living apart from loved ones) are not improperly medicated to be kept quiet, dependent and ignored. Obtaining a Rogers guardianship is quite complicated and, in our view, often requires the assistance of a lawyer. If you would like help in obtaining a Rogers (or regular) guardianship, contact us at Margolis & Bloom, LLP.