In re Hatsuye

FOURTH DIVISION
December 24, 1997

No. 1-97-2969 ) APPEAL FROM THE
) CIRCUIT COURT OF
IN RE HATSUYE T. ) COOK COUNTY
Alleged to be a Person Subject )
to Involuntary Electroconvulsive ) HONORABLE
Therapy (KEI HARADA, Petitioner- ) JAMES HENRY
Appellee; HATSUYE T., Respondent ) JUDGE PRESIDING.
-Appellant). )


JUSTICE McNAMARA delivered the opinion of the court:

On July 24, 1997, petitioner Kei Harada filed a petition for
appointment of guardian for disabled person and a petition for
temporary guardian for disabled person, naming respondent in this
matter, Hatsuye T., as the respondent in both petitions. On July
25, 1997, petitioner filed a petition for involuntary
administration of electroconvulsive therapy (ECT) pursuant to
section 2-110 of the Mental Health and Developmental Disabilities
Code (the Mental Health Code)(405 ILCS 5/2-110 (West 1996)),
naming Hatsuye T. as respondent. Following a bench trial, the
trial court appointed petitioner as Mrs. T.'s temporary guardian
and authorized him to consent to as many as 10 treatments of ECT,
despite Mrs. T.'s objections. Respondent appeals from the entry
of an order authorizing petitioner to consent to the involuntary
administration of ECT. For the following reasons, we reverse.
The relevant facts are as follows.
Mrs. T. is an 82-year-old Japanese woman who has suffered
from a recurrent mental illness called severe psychotic
depression with delusional features since 1983. She was first
hospitalized and treated for this illness in December 1983. The
initial treatment plan for psychotic depression is for the
patient to receive a series of medications to attempt to bring
about remission. At that time, Dr. Sidney Wright prescribed a
standard course of medications for Mrs. T., but it failed to
bring about a remission. Dr. Wright then recommended the next
level of treatment, ECT. According to Dr. Wright, Mrs. T. showed
marked improvement following the administration of ECT, including
a complete remission of the delusional beliefs.
Mrs. T. remained in remission until February 1988, when her
delusional beliefs recurred. Mrs. T. was again treated with ECT
and went into remission. She remained in remission until
December 1994, when her symptoms returned. Mrs. T. was again
treated with ECT and remained in remission until July 1995. In
July 1995, she again received and benefitted from ECT. According
to the testimony of Dr. Wright, Mrs. T.'s clinical symptoms of
psychotic depression and her delusional beliefs essentially
replicated themselves with each episode of illness. With each
episode, Mrs. T. believed that she was guilty of some crime, that
the government would come to get her, that her money was not like
everybody else's, that she would be arrested and taken away from
this country and that she would not be allowed to return to her
apartment. On numerous occasions throughout this time, Dr.
Wright tried to treat Mrs. T. with medications, but to no avail.
On December 26, 1996, Mrs. T. again suffered a relapse and
was voluntarily admitted to Northwestern Memorial Hospital (NMH)
for treatment of her psychotic depression. Upon admission Mrs.
T. signed and the hospital staff accepted an application for
voluntary admission, a "Rights of Recipients" form, a consent for
treatment, a consent to release confidential information, an
assignment of benefits, and a guarantee of payment. In early
January 1997, Dr. Wright again tried medication for Mrs. T.'s
mental illness, including Wellbutrin, an antidepressant
medication, and Zyprexin, an antipsychotic medication, but was
again unsuccessful. He then recommended ECT. Mrs. T. refused.
On June 14, 1995, Mrs. T. had executed a health care power
of attorney, naming petitioner as her authorized agent for health
care decisions. Despite the broad powers given to petitioner
under this document, hospital counsel advised Dr. Wright to
obtain a court order before proceeding with ECT treatment.
Therefore, in January 1997, petitioner initiated guardianship
proceedings to obtain judicially approved consent for the
administration of ECT. Laurel Spahn was appointed as Mrs. T.'s
attorney and Margo Hablutzel was appointed guardian ad litem. On
January 31, 1997, Mrs. T. signed a written consent for ECT after
she was told by Dr. Wright that her only other option was
immediate discharge to a nursing home. Mrs. T.'s husband had
died in a nursing home and Mrs. T. feared that she too would die
if put in a nursing home. Dr. Wright witnessed the consent,
accepted it and was prepared to have the treatments administered.
Surprised to hear of Mrs. T.'s consent, given that she had
been so determined to refuse the treatment, Spahn and Hablutzel
visited Mrs. T. on the afternoon of January 31, 1997, and
explained her rights to her. They also informed Mrs. T. that she
had the option of refusing the ECT and returning to her apartment
since she was voluntarily committed to NMH. Mrs. T. then revoked
her consent to ECT, made a written request for discharge, and
executed an amendment to her health care power of attorney. The
amendment limited the powers of the agent by excluding the right
to consent to ECT and to consent to hospitalization or nursing
home placement for Mrs. T. Both attorneys witnessed the
amendment and later testified at trial that Mrs. T. was competent
to execute the document. Mrs. T. was discharged and sent home to
her apartment and the guardianship petition was voluntarily
withdrawn.
Mrs. T.'s medical condition worsened in July and on July 10,
1997, Mrs. T. was involuntarily committed to NMH. Dr. Wright
again recommended ECT. Mrs. T. refused. The guardianship
proceedings were reopened and the petition for involuntary
administration of ECT was filed. A bench trial was held from
August 5 through August 7, 1997, during which the trial court
heard the testimony of petitioner, the named agent under Mrs.
T.'s power of attorney; petitioner's wife, the named successor
agent under Mrs. T.'s power of attorney; Dr. Wright, Mrs. T.'s
treating psychiatrist for 14 years; Spahn; Hablutzel; and Dr.
Stephen Fox, an osteopathic physician appointed by the court to
examine Mrs. T. On August 7, 1997, the trial judge entered an
order appointing petitioner the temporary guardian of Mrs. T. and
allowing petitioner to consent to up to 10 ECT treatments over
Mrs. T.'s objections. Mrs. T. appeals from the portion of the
order authorizing petitioner to consent to the involuntary
administration of ECT. We note that this court has stayed the
trial court's August 7, 1997, order pending resolution of the
merits of this appeal. Mrs. T. is presently involuntarily
committed to Warren Barr Pavilion nursing home.
On appeal, respondent contends that the trial court's order
for the involuntary administration of ECT is void for lack of
subject matter jurisdiction. Respondent further contends that
the trial court erred in entering said order because involuntary
ECT is not the least restrictive treatment available. Finally,
respondent contends that section 2-110 of the Mental Health Code
violates the Illinois constitutional guarantees of privacy,
substantive due process, and procedural due process.[fn1]

Respondent first contends that the trial court's order is
void for lack of subject matter jurisdiction because section 2-10
of the Durable Power of Attorney Law (755 ILCS 45/2-10 (West
1996)) and section 11a-17 of the Probate Act of 1975 (755 ILCS
5/11a-17 (West 1996)) both prohibit a guardian from exercising
authority over matters covered by a power of attorney.
Specifically, respondent contends that Mrs. T. amended her power
of attorney in January 1997 and specifically excluded the right
to consent to ECT. Therefore, the trial court had no authority
to authorize petitioner to consent to up to 10 involuntary ECT
treatments for Mrs. T., in direct conflict with her wishes as
expressed in the January 1997 amendment.
Petitioner initially counters that this argument has been
waived by Mrs. T. because it was not raised in the trial court.
However, the law is clear that lack of subject matter
jurisdiction may be raised at any time, even for the first time
on appeal. City of Marseilles v. Radke, 287 Ill. App. 3d 757,
679 N.E.2d 125 (1997); Randall v. Wal-Mart Stores, Inc., 284
Ill. App. 3d 970, 673 N.E.2d 452 (1996); Muller v. Jones, 243
Ill. App. 3d 711, 613 N.E.2d 271 (1993). Therefore, we reject
petitioner's contention that this argument has been waived.
In section 4-1 of the Powers of Attorney for Health Care
Law (755 ILCS 45/4-1 (West 1996)), the Illinois General Assembly
recognized the right of an individual to control all aspects of
his or her personal care and medical treatment. 755 ILCS 45/4-1
(West 1996). Included in this right is the right to appoint an
agent to make personal and health care decisions for an
individual throughout his or her lifetime, including during
periods of disability, that will be honored by third parties at
all times. 755 ILCS 45/2-1 (West 1996). Specifically, pursuant
to section 4-3 of the Powers of Attorney for Health Care Law, an
individual may delegate to her agent "all powers an individual
may have to be informed about and to consent to or refuse or
withdraw any type of health care for the individual." 755 ILCS
45/4-3 (West 1996).
In general, "[a]bsent court order directing a guardian to
exercise powers of the principal under the agency, a guardian
will have no power, duty or liability with respect to *** any
personal or health care matters covered by the agency." 755 ILCS
45/2-10 (West 1996). Once a valid power of attorney has been
executed, a guardian cannot exercise authority over matters that
are covered by the power of attorney. 755 ILCS 5/11a-17(c)(West
1996)(absent court order pursuant to the Illinois Power of
Attorney Act, a guardian has no power, duty or liability with
respect to any health care matters covered by the agency); In re
Guardianship of Mabry, 281 Ill. App. 3d 76, 666 N.E.2d 16 (1996).
This is true even if the principal has become incompetent,
because a power of attorney is binding even during periods of
disability. 755 ILCS 45/2-1 (West 1996).

There is one exception to this general rule. Section 2-10
of the Durable Power of Attorney Law provides that under certain
circumstances the court may order a guardian to take necessary
actions to protect the best interests of the principal even
though the matters are covered by a power of attorney.
Specifically section 2-10 of the Durable Power of Attorney Law
provides:
"Upon petition by any interested person (including the
agent), with such notice to interested persons as the
court directs and a finding by the court that the
principal lacks the capacity to control or revoke the
agency: (a) if the court finds that the agent is not
acting for the benefit of the principal in accordance
with the terms of the agency or that the agent's action
or inaction has caused or threatens substantial harm to
the principal's person or property in a manner not
authorized or intended by the principal, the court may
order a guardian of the principal's person or estate to
exercise any powers of the principal under the agency,
including the power to revoke the agency, or may enter
such other orders without appointment of a guardian as
the court deems necessary to provide for the best
interests of the principal ***." 755 ILCS 45/2-10
(West 1996).
Absent a finding by the court that (1) the principal lacks the
capacity to control or revoke the agency and (2) the agent is not
acting in accord with the terms of the agency or the agent's
action or inaction has caused or threatens substantial harm to
the principal, a guardian cannot exercise authority over a matter
covered by a power of attorney. 755 ILCS 45/2-10 (West 1996).
In the present case, Mrs. T. executed a valid health care
power of attorney in June of 1995, naming petitioner as her
agent. She amended that power of attorney on January 31, 1997,
and specifically excluded the power to consent to ECT and the
power to consent to hospitalization or placement in a nursing
home. The evidence is uncontradicted that the January 31, 1997,
amendment to the power of attorney was valid. Attorneys Spahn
and Hablutzel testified that they witnessed Mrs. T.'s signature
on the amended power of attorney and that they each felt that
Mrs. T. had the capacity to sign the document. Dr. Fox, the
physician appointed by the court to examine Mrs. T., testified
that he believed Mrs. T. had the capacity to make decisions
regarding medical treatment on January 31, 1997.
Furthermore, the staff at NMH treated Mrs. T. as if she had
capacity to make medical decisions at that time. On December 26,
1996, the NMH staff accepted Mrs. T.'s application for voluntary
admission. On that same day, Mrs. T. signed and the NMH staff
accepted a "Rights of Recipients" form, a consent for treatment,
a consent to release of confidential information, an assignment
of benefits, and a guarantee of payment.
Perhaps most significant to the question of capacity is the
fact that on the morning of January 31, 1997, Dr. Wright
witnessed Mrs. T.'s signature on a written consent to ECT. Dr.
Wright admitted that he would have administered the treatment
based on that written consent. He also testified that Mrs. T.'s
condition had not changed from the morning of January 31, 1997,
to the afternoon when she revoked her consent and amended her
power of attorney. This evidence is uncontradicted. There can
be no question that the January 31, 1997, amendment is valid.
Therefore, pursuant to section 2-10 of the Durable Power of
Attorney Law, the trial court had no authority to authorize the
petitioner to consent to ECT treatments for Mrs. T. in direct
conflict with her amended power of attorney.

We reject petitioner's contention that the exception set
forth in section 2-10 of the Durable Power of Attorney Law
applies in this case. The statute is clear that before the
exception applies and the court can order a guardian to act, the
court must find (1) that the principal lacks the capacity to
control or revoke the agency and (2) that the agent is not acting
in accordance with the terms of the agency or that the agent's
action or inaction has caused or threatens substantial harm to
the principal "in a manner not authorized or intended by the
principal." Absent such a finding, the court has no authority to
order a guardian to act.
No such finding was made in this case. There was no finding
by the trial court that Mrs. T. lacked capacity to control or
revoke the agency. The trial judge found only that Mrs. T.
presently lacked the specific capacity to make informed decisions
about ECT. Furthermore, there was absolutely no evidence that
petitioner ever attempted to consent to ECT in violation of the
power of attorney or that Mrs. T. could not control him if he
did. We reject petitioner's contention that his inability to
consent to ECT threatens substantial harm to Mrs. T. "in a manner
not authorized or intended by the principal." The inability to
consent to ECT is not a manner not authorized or intended by the
principal. In fact petitioner's inability to consent to ECT is
exactly what Mrs. T. intended.
Neither of the required showings has been made. Therefore,
we find that pursuant to section 2-10 of the Durable Power of
Attorney Law and section 11a-17 of the Probate Code of 1975, the
trial court lacked subject matter jurisdiction to enter this
order. The law is clear that an order entered by a court that
lacks subject matter jurisdiction is void. In re M.M., 156 Ill. 2d 53, 619 N.E.2d 702 (1993); In re Rami M., 285 Ill. App. 3d
267, 673 N.E.2d 358 (1996). Therefore, we find that the trial
court's order is void for lack of subject matter jurisdiction.
Petitioner points out that although the amended power of
attorney also revoked the power to consent to hospitalization or
placement in a nursing home, Mrs. T. made no objection to her
involuntary commitment to NMH on July 10, 1997, or her
involuntary commitment to Warren Barr Pavilion nursing home on
August 27, 1997. This is irrelevant. Mrs. T.'s failure to
object to these commitments does not change the fact that the
trial court lacked subject matter jurisdiction under section 2-10
of the Durable Power of Attorney Law to order ECT and that the
trial court's order is void.
Respondent next contends that the trial court erred in
entering it's order because involuntary ECT is not the least
restrictive treatment available. Specifically, respondent
contends that she has a constitutional right to refuse ECT and
that her right can be lawfully infringed only by the least
restrictive means available.
An individual has a significant due process liberty interest
in refusing the administration of unwanted, nonemergency
psychotropic medications. In re C.E., 161 Ill. 2d 200, 641 N.E.2d 345 (1994); In re Barbara H., 288 Ill. App. 3d 360, 680 N.E.2d 471 (1997). There is at least as significant a liberty
interest in refusing unwanted ECT. In re Branning, 285 Ill. App.
3d 405, 674 N.E.3d 463 (1996), cert. granted, 172 Il.2d 552
(1997). This is also evidenced by the Illinois legislature's
recent amendment to the Mental Health and Developmental
Disabilities Code. Pursuant to Public Act 90-538, ECT was
included in section 2-107.1 of the Mental Health Code, the
psychotropic medication statute, so that an individual faced with
involuntary administration of ECT would receive the same due
process protections as an individual faced with involuntary
administration of psychotropic medications. This liberty
interest cannot be infringed absent a showing that other less
restrictive services have been considered and found ineffective.
In re C.E., 161 Ill. 2d 200, 641 N.E.2d 345 (1994); In re Estate
of Austwick, 275 Ill. App. 3d 769, 656 N.E.2d 779 (1995)(reversed
order allowing involuntary administration of ECT where less
restrictive treatment with medications not tried).
As a reviewing court, we give great deference to the trial
court's factual findings because the trial court stands in the
best position to weigh the credibility of all the witnesses. In
re Jones, 285 Ill. App. 3d 8, 673 N.E.2d 703 (1996). Therefore,
we will reverse the trial court's determination only if we find
it to be manifestly erroneous. Jones, 285 Ill. App. 3d 8, 673 N.E.2d 703; In re Floyd, 274 Ill. App. 3d 855, 655 N.E.2d 10
(1995); In re Schaap, 274 Ill. App. 3d 497, 654 N.E.2d 1084
(1995). In the present case, we do not find the trial court's
determination that less restrictive treatments were explored and
found wanting to be manifestly erroneous.
Respondent contends that during her January 1997
hospitalization, Dr. Wright prescribed Wellbutrin, a new
antidepressant medication. After 10 days Dr. Wright discontinued
the medication in anticipation of administering ECT. Respondent
argues that she was not given a sufficient trial period of
Wellbutrin, a less restrictive form of treatment than ECT.
The record reveals that when asked if 10 days were a
sufficient trial period, Dr. Wright testified that ideally he
would have continued the Wellbutrin another 10 days or so, but
that there was no question that ECT was the treatment of choice
for this particular patient. Indeed, the evidence indicates that
Mrs. T. has a 14-year history with Dr. Wright, during which time
she was prescribed various antidepressant drugs on numerous
occasions. The drugs always failed to bring about remission.
Dr. Wright testified that based on the fact that medications had
failed to prove helpful to Mrs. T. in the past, he did not regard
them as a useful less restrictive option for her.
Respondent's reliance on In re Estate of Austwick, 275 Ill.
App. 3d 769, 656 N.E.2d 779 (1995), is misplaced. In Austwick,
the court held that ECT was not in Mrs. Austwick's best interest
because other less restrictive alternatives had not been
considered or tried. The doctor in that case testified that
there were a number of medications he could prescribe to help
Mrs. Austwick, yet he prescribed none, and none were tried.
There was no history of taking medications. Here, unlike in
Austwick, Mrs. T. has a 14-year history of trying various
medications to no avail.
Given this evidence, the trial court's determination that
less restrictive treatments had been explored and found wanting
was not manifestly erroneous. However, in light of our finding
that the trial court lacked subject matter jurisdiction under
section 2-10 of the Durable Power of Attorney Law, the trial
court's order is void.
Accordingly, for the reasons set forth above, the judgment
of the circuit court of Cook County is reversed.
Judgment reversed.
CERDA, P.J., and WOLFSON, J., concur.
[fn1] Respondent's constitutional arguments are moot
following the enactment of Public Act 90-538, which amended
section 2-110 of the Mental Health Code. Consequently, these
contentions need not be addressed.