204 Cal. App. 4th 326
Cal. Ct. App.2012Background
- Petitioner Scott S. is under an LPS conservatorship with the Orange County Public Guardian as conservator.
- Guardian sought a court order under Welfare and Institutions Code 5358.2 to consent to amputation of petitioner’s right second toe.
- Guardian relied on written physician declarations stating the infection and benefits/risks of amputation; one physician claimed medical necessity, another questioned petitioner’s capacity to consent.
- Trial court treated capacity to consent as the sole issue and found petitioner lacked capacity, relying on the declaration to support medical necessity.
- Court granted guardian authority to consent but stayed the order pending review; writ petition was filed and the court granted a peremptory writ to vacate and conduct a new hearing with admissible evidence.
- Petitioner’s challenge focuses on admissibility of the declaration and on whether medical necessity must be proven as part of §5358.2 procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must the conservatorship order under §5358.2 prove medical necessity? | Scott argues medical necessity is required. | Guardian contends capacity is the sole issue. | Yes; medical necessity must be proven. |
| What evidentiary standard applies to medical necessity under §5358.2? | Admissible evidence required; the declaration is hearsay. | Hearing on capacity could rely on physician testimony. | Admissible evidence required; hearsay declaration should not suffice. |
| Must the conservator prove the conservatee lacks capacity in addition to medical necessity? | Petitioner argues capacity is the only issue. | Guardian must show incapacity and medical necessity. | Both capacity and medical necessity must be shown. |
| Is Dr. Earnest’s testimony sufficient to prove lack of capacity without treating-physician testimony? | Treating physician testimony is required for capacity. | Psychologist’s testimony is admissible to assess capacity. | Yes; psychologist’s testimony can support capacity findings; treating-physician testimony not strictly required. |
Key Cases Cited
- Riese v. St. Mary’s Hospital & Medical Center, 209 Cal.App.3d 1303 (Cal. App. Dist. 1989) (rights of gravely disabled patients under LPS; informs capacity and treatment rights)
- Conservatorship of Pamela J., 133 Cal.App.4th 807 (Cal. App. Dist. 2005) (addresses balance of involuntary treatment and autonomy under LPS)
- Conservatorship of John L., 48 Cal.4th 131 (Cal. 4th Dist. 2010) (harmonizes LPS with Probate Code procedures for conservatorships)
- Edward W. v. Lamkins, 99 Cal.App.4th 516 (Cal. App. Dist. 2002) (conservatee retains rights unless expressly limited; capacity issues)
- Lillian F. v. Superior Court, 160 Cal.App.3d 314 (Cal. App. Dist. 1984) (ECT cases and capacity determination framework under §5326.7; limitations for general medical necessity questions)
- Maxon v. Superior Court, 135 Cal.App.3d 626 (Cal. App. Dist. 1982) (early discussion on applicability of Probate Code 2357 procedures to similar proceedings)