Memorandum
MEMORANDUM
Senior Partner Office
Elaboration of a case
FACTS
Parties here are also parents to Drazen Petrovic, who is identically twin brother to Nenad Petrovic.
Due to the birth complication, Nenad was born as mentally disabled without possibility to recover. Furthermore, he will never be able to have mental function higher than level of a 5-years-old child
On a trip to Florida’s Everglades, Drazen was bitten by a mosquito that was infected with a rare virus. The virus damaged Drazen’s kidneys to the point where he was in need of a transplant. Drazen’s condition deteriorated to the point where he could die in six months if a suitable kidney did not become available. Apparently, Nenad, as an identical twin brother, should be a perfect match for Drazen’s kidney. However, Nenad, due to his disability cannot understand this issue and consequences.
ISSUE
A: The first issue presented here is incapability of one of the parties to act for themselves and to perform reasonable understanding of issues and consequences. In cases like this, generally is accepted that guardians or custodians may act on their behalf if they are acting in a good faith and for the best interests of mentally incapable person.
Authority to guardian or custodian to act in the name of mentally disabled person, like in this case, is given and provided in statute NY Code Section 1750-B which, among the other states:
Unless specifically prohibited by the court after consideration of the determination, if any, regarding a mentally retarded persons capacity to make health care decisions, which is required by section seventeen hundred fifty of this article, the guardian of such person appointed pursuant to section seventeen hundred fifty of this article shall have the authority to make any and all health care decisions, as defined by subdivision six of section twenty-nine hundred eighty of the public health law, on behalf of the mentally retarded person that such person could make if such person had capacity. Such decisions may include decisions to withhold or withdraw life-sustaining treatment, as defined in subdivision (e) of section 81.29 of the mental hygiene law
According