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By Derek Graham, Partner
Resch, Root, Philipps & Graham, LLC
The COVID-19 pandemic has left Guardians with several questions and concerns. It started with the panic of whether a Guardian can visit a Person Under Guardianship (“Person”) if that individual is hospitalized during COVID-19. (The answer? It depends. See more on visitation here.) Then came the rollercoaster of whether a Person with a developmental disability would receive a stimulus check. (The answer? They can, and they should. Email us if you have questions.)
Now, the latest concern is about what to do if the Guardian and the Person disagree on whether to get the COVID-19 vaccine.
What can a Guardian do and what should a Guardian do in this circumstance?
Person Wants to Have Vaccine – Guardian Says NO
When it comes to medical treatment, a Guardian of the Person must give consent before a medical provider can treat. This is a basic principle of guardianship law. Treatment certainly includes vaccinations. Accordingly, if the Guardian does not consent to the vaccine being given, the medical provider should not give the vaccine and has significant risk/exposure for legal problems if they do. If the Person wants the vaccine and the Guardian refuses consent, the Person should file a written complaint and request for hearing with the Probate Court, pursuant to Ohio Superintendence Rule 66.03(B). In this situation, the complaint can be filed by any person—not just the Person.
Guardian Wants Person to Have Vaccine - Person Says NO
Conversely, if the Guardian wants the Person to have the vaccine, but the Person does not want to receive the vaccine - that creates a trickier situation. A Guardian can consent to the vaccine, but generally speaking, a Guardian cannot force medication or treatment on the Person. In other words, the Guardian can consent but if the Person physically refuses to go along with what the Guardian wants, the Guardian cannot then physically force the Person to receive the vaccination against their will (nor will medical providers hold someone down to administer the vaccine).
This scenario can sometimes leave everyone involved perplexed and frustrated. In Ohio, medication can only be forced on someone against their will in very limited circumstances. If the Guardian feels strongly about the need for the vaccine, the Guardian can also notify the Probate Court and the court may set the matter for a hearing. The Probate Court as the Superior Guardian would then be able to weigh in on the matter and, if nothing else, the Guardian has documented their efforts in the record of the Probate Court.
Preferred Outcome
As Ohio law and Superintendence Rule 66 makes clear, the preferred outcome in these situations is for the Guardian and Person to communicate about their respective positions, seek education and information from all available sources and work toward making a decision together that meets the individual’s best interests.