In re Guardianship of Pescinski

Richard Pescinski (defendant) was a catatonic schizophrenic whose mental ability had never progressed beyond that of a 12-year-old. Richard was declared incompetent and committed to a state mental hospital, and his sister Janice (plaintiff) was appointed as his guardian. Richard had another sister, Elaine, who lost both kidneys to disease. Although Elaine was on dialysis, she would not live much longer without a kidney transplant from a donor, likely a family member, with a close tissue match. Elaine’s parents were too old to be donors, and her children were too young. Janice was not an acceptable donor because she had diabetes. Elaine had another brother, Ralph, but he declined to be a donor. Ralph said that he had his own health concerns and needed to remain healthy to provide for his large number of children. No cadaver matches were found, but Richard was a compatible match for Elaine. As Richard’s guardian, Janice sought legal permission to have Richard donate one of his kidneys to keep Elaine alive. No evidence was submitted that Richard himself had consented to the surgery, even with his reduced competency. A guardian ad litem was appointed for Richard, and the guardian ad litem would not consent to the donation on Richard’s behalf. The trial court found that Richard would likely consent to the donation if he were legally competent. But Richard was not competent, and the court did not have the authority to order an incompetent person to make an organ donation. The case was appealed.