Wendland

JConcurring.—As the majority correctly explains, a conservatee whose right to live may ultimately hinge on decisions made by his court-appointed conservator is entitled to counsel to represent his interests. I concur fully in the majority’s reasoning. I write separately to emphasize the complexity of the life and death issues underlying this litigation, a complexity possibly lost on the trial court, which thought “the issues here after all is said and done are very simple.” Though I agree those issues are not ripe for resolution at this time, counsel appointed to represent the conservatee should not take our silence in addressing them as concurrence with the views expressed by the trial court. Quite simply, the issues are not simple.

This much is clear: A person has a constitutional right to refuse unwanted medical procedures, including artificial hydration and nutrition. (See Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261, 277 [ 111 L.Ed.2d 224, 241 , 110 S.Ct. 2841 ]; Thor v. Superior Court (1993) 5 Cal.4th 725 [ 21 Cal.Rptr.2d 357 , 855 P.2d 375 ].) 1 There is little doubt that if Robert were competent, he could refuse further medical treatment. However, in…

Taylor, Scott, Nichols & Matteucci and W. Stephen Scott for Real Party in Interest.

OPINION

SIMS, J.

The issue in this case is whether the trial court must appoint independent counsel to represent a conservatee in conservatorship proceedings under Probate Code section 1471, subdivision (b) (hereafter section 1471(b)). The conservatee, Robert Wendland, was brain-injured by a 1993 motor vehicle accident and receives food and fluids through a nasogastric tube. Robert's wife, real party in interest Rose Wendland, has been appointed temporary conservator and seeks to be appointed permanent conservator and to withdraw food and fluids from Robert, which she asserts is in accordance with his wishes. [1] Florence Wendland and Rebekah Vinson are respectively the mother and sister of Robert Wendland. They filed a petition for a writ of mandamus in this court upon the trial court's denial of their petition seeking appointment of independent counsel for Robert in the conservatorship proceedings.

We shall conclude independent counsel must be appointed for Robert.

Robert, age 43, has been hospitalized since a September 1993 motor vehicle accident. [2] He was comatose for more than a year…

The issue in this case is whether the trial court must appoint independent counsel to represent a conservatee in conservatorship proceedings under Probate Code section 1471, subdivision (b) (hereafter section 1471(b)). The conservatee, Robert Wendland, was brain-injured by a 1993 motor vehicle accident and receives food and fluids through a nasogastric tube. Robert’s wife, real party in interest Rose Wendland, has been appointed temporary conservator and seeks to be appointed permanent conservator and to withdraw food and fluids from Robert, which she asserts is in accordance with his wishes. 1 Florence Wendland and Rebekah Vinson are respectively the mother and sister of Robert Wendland. They filed a petition for a writ of mandamus in this court upon the trial court’s denial of their petition seeking appointment of independent counsel for Robert in the conservatorship proceedings.

We shall conclude independent counsel must be appointed for Robert.

Factual and Procedural Background

Robert, age 43, has been hospitalized since a September 1993 motor vehicle accident. 2 He was comatose for more than a year before awakening in January 1995. The accident left Robert…