San Diego Estate Planning Lawyer Blog
Conservatorships are often thought of in the context of a person caring for an elderly parent who is no longer capable of making his or her own decisions. But conservatorships can also involve a parent caring for a physically or developmentally disabled adult child. These situations raise complex legal questions regarding the limits of personal liberty, as proven by a July 31 decision of the California 4th District Court of Appeal in Santa Ana.
The unnamed appellant in this case is a 25-year-old developmentally disabled woman. Upon reaching her 18th birthday, a probate judge appointed the woman’s mother as her “limited conservator,” authorizing the mother to direct her daughter’s medical care. For many years, the daughter has suffered from “severe and debilitating migraine headaches” related to an irregular menstrual cycle. After a number of treatments failed to treat the migraines, an obstetrician-gynecologist recommended the daughter undergo a total hysterectomy.
Although the daughter indicated she approved of the surgery, legally should could not give “informed consent,” so her mother, as conservator, had to petition the probate court for permission to proceed with the hysterectomy. The court appointed a public defender to represent the daughter’s legal interests.
Higher Standards for “Fundamental Rights”
There was some disagreement as to the applicable law in this case. One section of the California Probate Code governs the forced sterilization of developmentally disabled persons. Another section addresses court-ordered medical treatment for persons under a conservatorship. The public defender wanted to apply to the “forced sterilization” clause because it required the mother to meet a higher burden of proof. The court disagreed and applied the latter standard.
Having chosen to treat the case as a petition for medical treatment, the court applied a “preponderance of the evidence standard,” the lowest burden of proof used in civil cases. Accordingly, the trial judge found that the daughter had a medical condition that required a physician-recommended course of treatment, and that failure to receive said treatment would likely “result in a serious threat to the mental health” of the daughter. The judge therefore granted the mother’s petition to give consent to the hysterectomy.
The 4th District Court of Appeal reviewed this decision as an automatic appeal. The appeals court ultimately upheld the order to allow the surgery, but criticized the lower court for applying an incorrect burden of proof. Because this particular request for medical treatment would leave the daughter unable to ever bear children, it was necessary to apply the higher “clear and convincing evidence” standard to the mother’s petition. The appeals court cited earlier decisions from the California Supreme Court explaining the “fundamental right to procreative choice” required additional legal protection above-and-beyond the normal due process in medical treatment cases.
The appeals court was careful to note that in most cases involving medical treatment, the lower “preponderance of the evidence” standard would still apply. Only if the facts of a particular case touched on a “fundamental right” would the higher standard be necessary. In any event, the daughter’s public defender in this case failed to present any evidence rebutting the mother’s case in favor of the hysterectomy; therefore, it didn’t matter the trial court failed to apply the higher burden of proof.
Making Your Healthcare Wishes Known
In looking at your own estate planning, especially an advance directive for health care, it’s important to make your wishes known in the event you face the possibility of a life-changing surgery when you may no longer be able to give consent. Your healthcare directives can guide a future conservator in determining what is in your best interests. If you have any questions or concerns, please contact the Law Office of Scott C. Soady today.