The following is an edited version of an exchange on a legal listserv. This brings up a point raised by an expert at our last Long Beach Bar Assn. Probate and Trust Section Brown Bag Lunch. Sam Ingham, III, Esq., an expert and friend, commented on the dangers of putting anything regarding a client or a case on a listserv or social networking site. In addition, be aware that these same sites are available and may be seen by opponents or court personnel. Having said that, the following inquiry came up on a listserv. The response, edited by me and published with permission, is meant to alert all of us to issues which may arise when confronted by life support issues during a conservatorship.
The inquiry: I have a client who is the conservator of her mother. The mother has recently come down with pneumonia. She had to be placed on life support. My client “knows” that her mother would not have wanted to be on life support. She does not have any documents stating that but that is how her mother dealt with their father when he passed. The order in the conservatorship has an attachment that states: Court granted 2355 powers with notification to XXXXXXXXXX before withholding life-sustaining medical treatment. We have called XXXXXXXXXX and sent him an email, but while I am waiting for his response, I wanted to check and see if any of you knew if there was something other than giving notice to XXXXXXXXXXXX we would have to do before taking the conservatee off of life support?
The response from longtime friend, peer and highly esteemed Orange County attorney Ernest Hayward:
The issue you now present is far too important for me to ignore your inquiry. The facts you present are that the conservatee has no known and executed Advance Health Care Directive or POLST (Physician’s Order for Life Sustaining Treatment), nor an older form Durable Power of Attorney for Healthcare, nor a Living Will, nor any signed document expressing the wishes and intentions of the conservatee on these important end-of-life issues.
Even with Probate Code Section 2355 powers (exclusive authority vested in the conservator for medical treatment), I would NOT advise a client of mine to either refuse life-sustaining treatment recommended by a treating physician, and certainly not to WITHDRAW such life-sustaining treatment (a virtual death sentence in most cases) without specific court authority and the issuance of a court order, pursuant to a Petition for Instructions, given on noticed hearing, not only with notice to the court-appointed attorney for the conservatee, but to all of the conservatee's relatives within the second degree, including spouse, children, grandchildren, all brothers and sisters, as well as any party who may have previously appeared in the conservatorship proceeding.
Your burden is to present to the court clear and convincing evidence of the conservatee's known wishes and intentions under the specific circumstances in which we find her today. Oral testimony of relatives, friends, neighbors and treating physicians is admissible on the subject, and their testimony as to the conservatee's prior statements about her wishes and intentions should clear the hearsay objection because such testimony is more in the nature of operative facts to establish the key issue, which is the conservatee's prior wishes and intentions and whether they should control present decision-making. As to possible hearsay objections and the past state of mind exception, what has been said by the conservatee previously regarding her wishes also speaks to her intentions and instructions, I still think her prior statements in that regard are "outcome determinative," on a Petition for Instructions, and perhaps are not hearsay at all, but are operative fact.
If the court is convinced by extrinsic evidence that the conservatee clearly, unequivocally defined what she wanted and did not want, under circumstances identical or closely similar to those in which we find her today, then the court may allow the conservator to make the decision to not engage in medical intervention (and thus to issue a "do not resuscitate" order), or, if treatment began and is ongoing, to cease the medical interventions or use of devices employed presently (such as gastrostomy feeding or the use of a ventilator, or kidney dialysis, for example).
The Orange County Public Defender's Office, for example, when appointed as counsel, will vigorously investigate and insist upon a complete evidentiary hearing leading to a court order on facts such as those you present. They will insist upon you meeting the burden of proof by clear and convincing evidence presented by the conservator and her counsel to the court of the conservatee's clearly stated intentions under conditions identical or similar to those presently existing, and that the burden has been fully met.
A Deputy P.D. and this responder have had a couple of "knock down--drag out" cases on facts similar to the ones you present. I took those cases to hearing precisely because my client and I believed we had such evidence. The P.D. was not as convinced as I was, and he wound up on the fence, so we had to put on the case, and the judge ruled (in our favor). We had a holographic Will that stated the consevatee's intentions in her very own words. It was interpreted by the judge as clear and convincing directions to her executor of what to do and what not to do on end of life issues. The use of her own words was both descriptive and definitive of what she wanted done in her present medical circumstances. The stars lined up in the case. Not all cases will be that easy for a judge to resolve.
At least one Orange County Counsel disagrees regarding the authority given when the court grants Probate Code Section 2355 powers. This individual believes the conservator then has the authority to order a "no code, do not resuscitate" order, and can refuse medical interventions, based on the conservator's good faith belief that this course of action is what the conservatee either said she wanted, or what is in the conservatee's best interests.
Put this position in the context of a private professional case manager, appointed as conservator by the court as a compromise due to family conflicts, or abuse, and who did not know the conservatee prior to appointment, and cannot personally attest to what the conservatee might want under any set of defined medical circumstances. The question then posed might well be:
"Did we appoint some stranger and grant her life and death decision-making authority, with no further hearing required, and with no notice to family members, and with no court affirmation of his intended decisions or what effect they are likely to have on the life of the conservatee, even when that effect is likely to be the end of her life?"
Welcome to a changing world, where the economics of care may soon trump all other considerations, but for the richest among us, as Medicare utilization review guidelines may now result in the denial of admission to acute care hospitals, upon a hospitalist's (gate keeper's) determination that "the patient is in the active process of dying, and there is nothing, medically, that can be done in this hospital to prevent it." Typically followed by: "We urge you to take her home with hospice care."
We were warned this day might come, in "Brave New World," "1984" and "Soylent Green." But so soon...?
Note that the court does not issue medical orders or decisions as to courses of treatment or cessation of treatment. The cases all indicate the courts merely allow or prohibit the conservator from taking a course of action, and from there on, it is up to the conservator. The court does not act as some "super conservator" in making medical decisions for conservatees.
John T. Anderson, Section Chair
Certified Specialist in Probate, Trust and Estate Planning
By the California State Bar Board of Legal Specialization