December 29, 2020
Developmental Disabilities Planning Council Office of Guardianship (OOG) issues this memorandum to provide guidance to OOG guardian contractors regarding whether protected persons should receive the COVID-19 vaccines that have been granted Emergency Use Authorization (EUA) by the federal Food and Drug Administration (FDA). This memorandum applies to guardians who are authorized by the courts to make decisions regarding medical treatment on behalf of protected persons.
OOG guardian contractors are required to follow the National Guardianship Association (NGA) Standards of Practice. NGA Standards 7 & 14 state the steps guardians must take when making medical decisions on behalf of protected persons. The NGA Standards unequivocally require an individualized, person-centered approach to medical decision-making, which includes asking the protected person what they want, clearly understanding health care options and risks and benefits of each option, and supporting the protected person in understanding the facts and directing a decision.
If a person cannot direct the decision, the guardian is required to act in accordance with the person’s prior statements, actions, values, and preferences to the extent known or ascertainable by the guardian. If the person’s preferences are unknown or unascertainable, the guardian is required to act in accordance with reasonable information received from medical professionals or others who demonstrate sufficient interest in the person’s welfare (such as family members and caregivers) to determine the person’s best interests. The determination must include consideration of consequences for others that an individual in the person’s circumstances would consider.
Therefore, in determining whether a protected person should receive the COVID-19 vaccine, the guardian should, at a minimum, take the following steps:
Finally, OOG received notice from multiple sources claiming that some guardian contractors are making blanket decisions to refuse administration of the COVID-19 vaccine on behalf of all protected persons based on NGA Standard 14(XIV)(B), which states a “guardian may not authorize extraordinary procedures without prior authorization from the court,” which “may include” medical interventions such as “[e]xperimental treatment.” NGA Standards do not define what “experimental treatments” qualify as extraordinary procedures requiring prior court authorization. For the purposes of contract compliance, OOG considers “experimental treatment” to mean:
The COVID-19 vaccines that are distributed in the State of New Mexico and administered by medical providers are widely recognized in the medical profession as proper care and treatment for COVID-19, and have been recognized by New Mexico Department of Health and the federal Food and Drug Administration as an effective treatment for COVID-19. Therefore, for purposes of guardian contract compliance, OOG does not consider these vaccines to be experimental treatments requiring prior court authorization.
OOG guardian contractors who make blanket decisions regarding whether their protected persons may receive the COVID-19 vaccines, or who fail to engage in individualized, person-centered decision-making, are failing to comply with NGA Standards and are in violation of their OOG contract.