Wendland v. Superior Court

• Decision Date: 11 September 1996
• Docket Number: No. C023041,C023041
• Citation: 56 Cal.Rptr.2d 595,49 Cal.App.4th 44
• Parties: , 96 Cal. Daily Op. Serv. 6823, 96 Daily Journal D.A.R. 11,143 Florence WENDLAND et al., Petitioners, v. The SUPERIOR COURT of San Joaquin County, Respondent; Rose WENDLAND, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 595

56 Cal.Rptr.2d 595

49 Cal.App.4th 44, 96 Cal. Daily Op. Serv. 6823,

96 Daily Journal D.A.R. 11,143

Florence WENDLAND et al., Petitioners, v. The SUPERIOR COURT of San Joaquin County, Respondent;

Rose WENDLAND, Real Party in Interest.

No. C023041.

Court of Appeal, Third District, California.

Sept. 11, 1996.

Brown, Hall & McKinley, John H. McKinley and Janie Hickok Siess, Stockton, for Petitioners.

No appearance for Respondent.

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

SIMS, Associate Justice.

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 brain-injured. He receives food and fluids through a nasogastric (feeding) tube. However, he is not in a persistent vegetative state or terminally ill. With therapy, Robert has made some limited progress. He follows simple commands, has vision in his left eye, and is able to move his left extremities, though he is paralyzed on the right side. He is able to maneuver his electric wheelchair in response to verbal cues.

In July 1995, Rose determined to withhold food and fluids, assertedly because Robert previously told her and other family members he would never want to live in a state of total dependence. Rose's decision was supported by Robert's physicians. The hospital ethics committee decided Rose's decision was appropriate and made plans to transfer Robert to a convalescent hospital where his feeding tube would be removed and he would die approximately six to thirty days thereafter.

Robert's mother and sister learned of these plans through an anonymous telephone call and obtained a temporary restraining order in early August 1995.

On August 8, 1995, Rose initiated proceedings to be appointed conservator for her husband. Her petition to be appointed conservator requested specific authority to withdraw life-sustaining treatment including nutrition and hydration.

A court investigator visited Robert several times and reported that Robert made no intelligible responses during the interviews but was actively participating in his rehabilitation therapy programs, though he was very, very limited. The investigator reported Robert had severe cognitive defects, much of the damage was irreversible, and there was a good possibility that there will be little or no improvement. The investigator recommended that Robert be given time. "He is cooperating in his own rehabilitation program. He is responsive to commands and enjoys the taste of a lemon and an orange. Once he is placed in a wheelchair, he is able to propel the chair when his ... hand is placed on the joy stick and given the command to push it forward. I have seen him stop and start the chair and move it on his own without commands from others. Is this much of a life? I wonder. He, however, is cooperating and should be given the opportunity to continue."

The investigator said of Rose: "[S]he is a single parent with a host of responsibilities that are overwhelming at times. She is a compassionate caring person who is doing the very best that she can."

The investigator recommended appointment of counsel for Robert, though he recommended that it not be the public defender due to a potential conflict of interest.

On September 11, 1995, a hearing was held on Rose's petition in the trial court. Although the court investigator's report recommended appointment of counsel for Robert, the trial court did not appoint counsel. At the conclusion of the hearing the trial court appointed Rose temporary conservator of Robert but did not grant her request for specific authority to withhold medical and/or life-sustaining treatment; the court continued the matter during which time Robert's therapy programs were to continue uninterrupted. The matter has since been continued several times and is now scheduled for hearing on September 16, 1996, apparently to determine whether to appoint Rose permanent conservator, and whether to grant her authority to withdraw life-sustaining treatment.

On January 24, 1996, after a couple of unsuccessful informal attempts to obtain appointed counsel for Robert, Florence and Rebekah filed a Petition for Appointment of Independent Counsel to Represent Conservatee in the trial court. Rose opposed the petition, arguing the conservatorship had already been established, the trial court at that time felt it was not necessary to appoint counsel, and there were no changed circumstances. Florence and Rebekah filed a reply asserting they need not show changed circumstances, and issues remain unresolved for which Robert should be represented, including the appropriateness of appointing Rose permanent conservator.

On February 13, 1996, a hearing was held. The trial court denied the petition for appointment of independent counsel. The court initially questioned what independent counsel could add to the proceedings in view of the court's perception that Robert would be unable to have any meaningful communication with a lawyer. After further argument, the trial court stated:

"In perusing the cases that have been handed down under [Probate Code sections] 1470 and 1471, I found some interesting language there in the Conservatorship of Sides, 1989 case, 211 Cal.App.3d 1086 at 1093 , it says appointed counsel in these conservatorship proceedings does not act as an adversary against the competing or against those competing for appointment as conservator, but serves as an advocate for the conservatee to insure that the best suited person is appointed conservator.

"I sat and thought about that language for a while. And ... I think both sides here representing the diametrically opposed views are very ably represented by counsel. I think you are both well prepared to deal with the issues that are before us here. The battle lines in this matter I think are very clearly drawn, although the rules of engagement are still a little bit fuzzy, because we are out there as I mentioned before in terra cognitio [sic ] as to California law. The respective positions of each side, however, have been very well stated to this point. The present litigants on both sides believe they represent what Robert wants, or what he did want, or as he previously expressed his desires, or as they believe he would express those desires now if he could.

"But by injecting a new dimension in this case by the appointment of an independent counsel I'm not sure that we would be adding anything to the proceedings. It doesn't appear to me based on the language that I mentioned to you earlier that the appointment of independent counsel is mandatory at this juncture under Probate Code 1470 or 1471, although it might be discretionary. But considering it in that discretionary light I find no good purpose would be served by the appointing of the third attorney who would then necessarily have to concur with one side or the other because I think the issues here after all is said and done are very simple.[ ³] Rose believes that in Robert's present condition he would not want to continue with his life. The rest--the other members of his family on the other side believe that he would. It doesn't get much more black and white than that--life or death. I think the parties here have very well expressed the considerations that I have to take into account to reach a decision."

The trial court denied the petition for appointment of independent counsel for Robert and denied the request of Florence and Rebekah for a stay of proceedings.

On February 21, 1996, Florence and Rebekah filed a petition for writ of mandate and immediate stay in this court. On February 23, 1996, we denied the petition and request for stay. On May 6, 1996, pursuant to direction by the California Supreme Court, we vacated our original action and issued an alternative writ of mandate, to which no response was made. We then ordered the parties to maintain the status quo pending further order of this court. It appears from the petition of Florence and Rebekah that they will be seeking appointment as conservator for Robert when proceedings resume in the trial court.

Rose has not filed a written return in this court.

DISCUSSION

Florence and Rebekah contend the trial court erred in refusing to appoint independent counsel for Robert in the conservatorship proceedings. We agree.

Section 1471(b) ⁴ requires the trial court to appoint independent counsel for a conservatee or proposed conservatee for specified conservatorship proceedings (including appointment or removal of conservators) if "the court determines that the appointment would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee or proposed conservatee." ⁵

Section 1471(b) applies because the issue here is whether Robert is entitled to counsel at further conservatorship proceedings at which the trial court will...