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Justices Grant Review In Life Support Case

By Mike McKee
The Recorder

A Stockton woman who in February won the right to terminate life support for her long-incapacitated husband won't be pulling the plug anytime soon.

On Wednesday, the California Supreme Court granted review of the four-month-old Sacramento ruling, which was the first by a California appeal court to authorize withdrawing life-sustaining treatment from someone who isn't terminally ill or in a persistent vegetative state.

All seven justices voted to hear Conservatorship of Wendland, S087265, leaving lawyers in the case wondering whether the court intends to issue a definitive statement on a conservator's power to make life or death decisions.

"One can't really speculate because they could be taking it just because it's an important case and to come to the same result as the Third District [Court of Appeal], just putting their stamp on it," said San Francisco lawyer James Braden, who represents the interests of Robert Wendland, the central figure of the case who has been hospitalized for nearly seven years. "Maybe they think they need to say something about" a non-persistent vegetative state case.

Sacramento's Third District Court of Appeal broke new ground with its ruling on Feb. 24, when it held that conservators -- who make health care decisions for mentally impaired patients -- can terminate life support for someone in a semi-conscious state. But they set a high hurdle for such conservators by saying that they first must prove by clear and convincing evidence that their decision was made in good faith based on sound medical advice and took into consideration the patient's best interests and prior expressed wishes.

Wendland, who is nearing 50, was injured in a one-vehicle accident in September 1993 while driving intoxicated. Though he has some limited motor functions, he has not spoken since the wreck.

His wife, Rose, exercised her conservator power in 1995 by seeking to terminate life support, based on her claim that Robert told her more than once during their marriage that he would never want to be kept alive artificially.

Doctors acquiesced, but were blocked by Robert Wendland's mother, Florence, and a sister, Rebekah Vinson, who argue that Wendland would want to live.

The case has garnered national attention, with Wendland's wife getting amicus curiae support at the appellate level from groups such as the California Medical Association, and his mother getting the backing of organizations such as Not Dead Yet, a nationwide disability rights group. CMA and others say conservators should have the right to act as surrogate decision-makers, while their opponents contend that such powers would lead to widespread mercy killings.

In siding with Rose Wendland, the Third District cited Conservatorship of Drabick, 200 Cal.App.3d 185, a 1988 Sixth District ruling that upheld a conservator's authority under Probate Code 2355 to make life-and-death decisions. Though that case involved someone in a vegetative state, unlike Wendland, the Third District held that the ruling could be interpreted broadly.

Robert Wendland's mother and sister petitioned the high court, challenging the constitutionality of the Probate Code, and arguing that the Third District ruling could have "far-reaching consequences."

Their lawyer, Janie Hickok Siess, was pleased by the court's decision to review the ruling.

"It's a reflection of how seriously this case needs to be looked at and it's an indication of the importance of the issue," said Siess, an associate in Stockton's Brown, Hall, Shore & McKinley. "It clearly tells me there's some disagreement with the Third District."

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