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HELD: A conservator of the person may not withhold tube feeding from a conscious conservatee who is not terminally ill, comatose, or in a persistent vegetative state, absent clear and convincing evidence that the conservator's decision is in accordance with either the conservatee's own wishes or his best interest.
On September 29, 1993, Robert Wendland was involved in a motor vehicle accident that left him brain injured and disabled, but conscious, and dependent on tube feeding for sustenance. Two years later his wife and conservator, Rose Wendland, requested that the feeding tube be withdrawn so that he would die. His mother and sister objected to her decision and she filed a petition requesting a court order that Robert Wendland's feeding tube be withdrawn. Conservatorship of Wendland, 26 Cal.4th 519, 28 P3d 151, 110 Cal.Rptr.2d 412 (Cal. 2001).
The conservator authorized surgery to replace dislodged feeding tubes three times. When physicians sought her permission the fourth time, she refused. A temporary nasogastric feeding tube was inserted instead. The physicians, various family members, and a twenty member ethics committee all approved her decision. Wendland's mother and sister objected and applied for a temporary restraining order to stop his physician from removing the nasogastric feeding tube. Rose Wendland then petitioned the court for appointment as conservator and recognition of her authority to withdraw or withhold medical treatment, including the nasogastric feeding tube. 28 P3d at 155.
The trial court held that "the conservator would be allowed to withhold tube feeding only if that would be in the conservatee's best interest, taking into account any pertinent wishes the conservatee may have expressed before becoming incompetent." The court also held that the conservator would have to prove the facts justifying her decision by "clear and convincing evidence." Id. at 156.
At trial the testifying physicians agreed that Wendland would not likely experience further recovery. They testified that to the "highest degree of medical certainty" he would not be able to make medical treatment decisions, walk, talk, feed himself, eat, drink, or control his bowel and bladder functions. Despite some improvements in therapy, Wendland remained severely disabled, both mentally and physically with "maladaptive behavior characterized by agitation, aggressiveness and non-compliance," "severe paralysis on the right and moderate paralysis on the...