On August 23, 2022 a
Motion,Ex Parte
was filed
involving a dispute between
Berkshire Medical Center, Inc.,
and
for Guardianship Managed
in the District Court of Berkshire County.
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Berkshire Probate and Family Court
Date Filed: 8/23/2022 10:29 AM
Docket No. Commonwealth of Massachusetts Case Number:
VERIFIED MOTION FOR APPOINTMENT OF
TEMPORARY GUARDIAN FOR AN The Trial Court
BE22P0___GD Probate and Family Court
INCAPACITATED PERSON PURSUANT TO
G.L. c. 190B, §5-308
In the Interests of: Berkshire Division
Dorothy K. Bastow 44 Bank Row
First Name Middle Name Last Name
Pittsfield, MA 01201
Alleged Incapacitated Person/Respondent (413) 442-6941
on Petition filed simultaneously herewith
The court shall encourage the development of maximum self-reliance and independence of the Incapacitated
Person and make appointive and other orders only to the extent necessitated by the Incapacitated Person’s
limitations or other conditions warranting the guardianship.
Berkshire Medical Center, Inc.
Now comes the moving party (“BMC”)
First Name M.I. Last Name
who states as follows:
1. An emergency exists requiring the appointment of a Temporary Guardian as any delay in the appointment will cause
immediate and substantial harm to the health, safety or welfare of the Respondent and no other person has authority to
act in the circumstances.
2. The nature of the circumstances requiring the appointment of a Temporary Guardian are:
On August 8, 2022, Ms. Bastow presented to the Emergency Department at BMC with altered mental status,
gait instability, and garbled speech. After experiencing seizure-like episodes in ED leading to hypoxia, Ms.
Bastow was intubated and admitted to the Intensive Care Unit. While Ms. Bastow was extubated on August
12, 2022, she remains cognitively impaired. Due to her condition, Ms. Bastow is unable to receive and
evaluate information or make or communicate decisions to such an extent that she lacks the ability to meet
essential requirements for physical health, safety, or self-care, even with technological assistance.
3. The particular harm sought to be avoided is:
Although Ms. Bastow is ready for discharge, that discharge cannot occur until a Temporary Guardian is
appointed with authority to authorize her admission to a nursing facility. Thus, the appointment of a
Temporary Guardian is necessary to prevent Ms. Bastow, who is medically stable and no longer in need of
inpatient hospitalization, from potentially contracting hospital borne illnesses she would be susceptible to
while awaiting a hearing on the Petition.
4. The actions which need to be taken by a Temporary Guardian to avoid the harm are:
The Temporary Guardian will need authority to admit Ms. Bastow to a nursing facility, to authorize
transcatheter aortic valve replacement (TAVR) surgery, and to enter Do Not Resuscitate/Do Not Intubate
(DNR/DNI) orders in her medical record.1
1
Given Ms. Bastow’s declining clinicalcondition, the medical team consulted with her next-of-kin regarding goals of care and
specifically,whether Ms. Bastow should remain on “full code” status. Ms. Bastow’s family, consisting of her son and daughter,
agreed, consistent with a MOLST she executed on July 2, 2019, that Ms. Bastow would not want to be resuscitated in the event of
cardiac or pulmonary arrest. In light of those discussions, which took place on August 12, 2022, and the fact that efforts to resuscitate
Ms. Bastow, even if successful, would do nothing to cure or relieve her underlying conditions, the decision was made, with the full
support of the medical team, to change her code status to DNR/DNI. See In re Dinnerstein, 6 Mass. App. Ct. 466 (1978)(validity of
order not to resuscitate patient with Alzheimer’s disease did not require prior court approval). To ensure that this change in code is
recognized outside of the hospital setting, the Petitioner is requesting that the Temporary Guardian be authorized to enter DNR/DNI
orders in Ms. Bastow’s medical record.
MPC 320 (5/30/11) Page 1 of 3
TurboLaw – (800) 518-8726 – c.g.f.
Berkshire Probate and Family Court
Date Filed: 8/23/2022 10:29 AM
Case Number:
5. Respondent:
Does (See Petition) Does not have a Health Care Agent in the Commonwealth or elsewhere or Uncertain.
A copy of the Health Care Proxy is attached already filed with the Court unavailable
The within Motion hereby is ALLOWED (see Order Appointing Temporary Guardian). DENIED.
Date
JUSTICE OF THE PROBATE AND FAMILY COURT
6. Respondent:
Does (See Petition) does not have a Durable Power of Attorney/Agent in the Commonwealth or elsewhere or
Uncertain.
A copy of the Durable Power of Attorney is attached already filed with the Court unavailable.
WHEREFORE, PETITIONER REQUESTS THAT THIS HONORABLE COURT :
Appoint The Petitioner(s) or
Robert Bastow or
First Name M.I. Last Name
Some suitable person.
as Temporary Guardian(s) of the Respondent to serve with without sureties for the following reasons:
The moving party further seeks specific court authorization:
to admit Respondent to a nursing facility;
to treat Respondent with antipsychotic medication in accordance with a treatment plan;
for the following treatment or action for which a substituted judgment determination may be required:
Authority to authorize transcatheter aortic valve replacement (TAVR) surgery, and
to enter Do Not Resuscitate/Do Not Intubate (DNR/DNI) Orders into the
Respondent’s medical record.
to revoke the Health Care Proxy of the Incapacitated Person;
to apply for health insurance benefits including MassHealth on behalf of the Respondent; and
to obtain copies of statements or any other records from banks, insurance companies, or other
financial institutions verifying balances and transactions of accounts standing in the name of
the Incapacitated Person, individually or jointly with another.
In addition, I request that the Court:
MPC 320 (5/30/11) Page 2 of 3
TurboLaw – (800) 518-8726 – c.g.f.
Berkshire Probate and Family Court
Date Filed: 8/23/2022 10:29 AM
Case Number:
Document Filed Date
August 23, 2022
Case Filing Date
August 23, 2022
Category
Guardianship Managed
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Berkshire Probate and Family Court Date Filed: 8/23/2022 10:29 AM Docket No. Commonwealth of Massachusetts Case Number: VERIFIED MOTION FOR APPOINTMENT OF TEMPORARY GUARDIAN FOR AN The Trial Court BE22P0___GD Probate and Family Court INCAPACITATED PERSON PURSUANT TO G.L. c. 190B, §5-308 In the Interests of: Berkshire Division Dorothy K. Bastow 44 Bank Row First Name Middle Name Last Name Pittsfield, MA 01201 Alleged Incapacitated Person/Respondent (413) 442-6941 on Petition filed simultaneously herewith The court shall encourage the development of maximum self-reliance and independence of the Incapacitated Person and make appointive and other orders only to the extent necessitated by the Incapacitated Person’s limitations or other conditions warranting the guardianship. Berkshire Medical Center, Inc. Now comes the moving party (“BMC”) First Name M.I. Last Name who states as follows: 1. An emergency exists requiring the appointment of a Temporary Guardian as any delay in the appointment will cause immediate and substantial harm to the health, safety or welfare of the Respondent and no other person has authority to act in the circumstances. 2. The nature of the circumstances requiring the appointment of a Temporary Guardian are: On August 8, 2022, Ms. Bastow presented to the Emergency Department at BMC with altered mental status, gait instability, and garbled speech. After experiencing seizure-like episodes in ED leading to hypoxia, Ms. Bastow was intubated and admitted to the Intensive Care Unit. While Ms. Bastow was extubated on August 12, 2022, she remains cognitively impaired. Due to her condition, Ms. Bastow is unable to receive and evaluate information or make or communicate decisions to such an extent that she lacks the ability to meet essential requirements for physical health, safety, or self-care, even with technological assistance. 3. The particular harm sought to be avoided is: Although Ms. Bastow is ready for discharge, that discharge cannot occur until a Temporary Guardian is appointed with authority to authorize her admission to a nursing facility. Thus, the appointment of a Temporary Guardian is necessary to prevent Ms. Bastow, who is medically stable and no longer in need of inpatient hospitalization, from potentially contracting hospital borne illnesses she would be susceptible to while awaiting a hearing on the Petition. 4. The actions which need to be taken by a Temporary Guardian to avoid the harm are: The Temporary Guardian will need authority to admit Ms. Bastow to a nursing facility, to authorize transcatheter aortic valve replacement (TAVR) surgery, and to enter Do Not Resuscitate/Do Not Intubate (DNR/DNI) orders in her medical record.1 1 Given Ms. Bastow’s declining clinicalcondition, the medical team consulted with her next-of-kin regarding goals of care and specifically,whether Ms. Bastow should remain on “full code” status. Ms. Bastow’s family, consisting of her son and daughter, agreed, consistent with a MOLST she executed on July 2, 2019, that Ms. Bastow would not want to be resuscitated in the event of cardiac or pulmonary arrest. In light of those discussions, which took place on August 12, 2022, and the fact that efforts to resuscitate Ms. Bastow, even if successful, would do nothing to cure or relieve her underlying conditions, the decision was made, with the full support of the medical team, to change her code status to DNR/DNI. See In re Dinnerstein, 6 Mass. App. Ct. 466 (1978)(validity of order not to resuscitate patient with Alzheimer’s disease did not require prior court approval). To ensure that this change in code is recognized outside of the hospital setting, the Petitioner is requesting that the Temporary Guardian be authorized to enter DNR/DNI orders in Ms. Bastow’s medical record. MPC 320 (5/30/11) Page 1 of 3 TurboLaw – (800) 518-8726 – c.g.f. Berkshire Probate and Family Court Date Filed: 8/23/2022 10:29 AM Case Number: 5. Respondent: Does (See Petition) Does not have a Health Care Agent in the Commonwealth or elsewhere or Uncertain. A copy of the Health Care Proxy is attached already filed with the Court unavailable The within Motion hereby is ALLOWED (see Order Appointing Temporary Guardian). DENIED. Date JUSTICE OF THE PROBATE AND FAMILY COURT 6. Respondent: Does (See Petition) does not have a Durable Power of Attorney/Agent in the Commonwealth or elsewhere or Uncertain. A copy of the Durable Power of Attorney is attached already filed with the Court unavailable. WHEREFORE, PETITIONER REQUESTS THAT THIS HONORABLE COURT : Appoint The Petitioner(s) or Robert Bastow or First Name M.I. Last Name Some suitable person. as Temporary Guardian(s) of the Respondent to serve with without sureties for the following reasons: The moving party further seeks specific court authorization: to admit Respondent to a nursing facility; to treat Respondent with antipsychotic medication in accordance with a treatment plan; for the following treatment or action for which a substituted judgment determination may be required: Authority to authorize transcatheter aortic valve replacement (TAVR) surgery, and to enter Do Not Resuscitate/Do Not Intubate (DNR/DNI) Orders into the Respondent’s medical record. to revoke the Health Care Proxy of the Incapacitated Person; to apply for health insurance benefits including MassHealth on behalf of the Respondent; and to obtain copies of statements or any other records from banks, insurance companies, or other financial institutions verifying balances and transactions of accounts standing in the name of the Incapacitated Person, individually or jointly with another. In addition, I request that the Court: MPC 320 (5/30/11) Page 2 of 3 TurboLaw – (800) 518-8726 – c.g.f. Berkshire Probate and Family Court Date Filed: 8/23/2022 10:29 AM Case Number: