Date: February 11, 2002
Story Idea
Contact: Ed Long, (310) 533-1996

Feeding Tube Survives Family Tug-of-War 
by Edward W. Long, Esq.

It's September 1993. Robert Wendland of Stockton rolls his truck at high speed in a solo accident. He suffers major brain injuries.

Time passes. He's conscious, but severely disabled. An independent doctor says Robert is minimally conscious, but can't interact with his environment in a proactive way. His own doctor says Robert will never be able to walk, talk, feed himself, eat, drink, or control his bowel and bladder function. He is kept alive by a feeding tube.

Robert hasn't signed a health care power of attorney or had significant discussions about his medical treatment wishes. To obtain authority to make treatment decisions for him, his wife Rose goes to court and becomes his conservator. Two years after the accident, Rose requests that the feeding tube be removed, and that Robert be allowed to die. His mother Florence objects. The battle is joined. What would Robert want?

It's August 2001. Reams of court papers, a sad scrapbook of news clippings and eight years after Robert's accident, the California Supreme Court delivers its 6 - 0 ruling on Rose's request. It requires clear and convincing evidence that either (i) Robert would have wanted the tube removed, or (ii) removing the tube would be in Robert's best interest. Clear and convincing evidence means evidence "so clear as to leave no substantial doubt" and "sufficiently strong to command the unhesitating assent of every reasonable mind." Rose has failed to provide such evidence. Request to withdraw the feeding tube: denied.

Robert died of pneumonia three weeks before the Court's ruling was issued. His family's passionate disagreement about what was the right thing to do for Robert undoubtedly lives on.

What can we learn from all this? For starters, the Court's opinion explicitly confirms the utility and effectiveness of naming an agent to make treatment decisions under a health care power of attorney. The result also confirms the value of communicating wishes and values in advance to those who will help us if we become incapacitated.

The needed tools are readily available. The California Medical Association's health care power of attorney is readily available from the CMA and many hospitals and doctors; and a simplified health care power of attorney form is available for free printout from the H.E.L.P. web site. Further, a 16-page plain-language communication tool called "Your Way" is also available for free through the H.E.L.P. web site or by calling H.E.L.P.

It is reported that no more than 20% of us have put a health care power of attorney or similar document in place. Even fewer of us have had the needed discussions with our families and/or friends. If Robert Wendland had planned ahead and had solid discussions with his family, his family's eight years of anguish could have been avoided. Don't we owe it to our clients and their families and friends, and to ourselves and our families and friends, to do the planning and have the discussions?

Ed Long is Executive Director and Staff Attorney for H.E.L.P. H.E.L.P. is a Torrance, California-based non-profit service for older adults and their caring families and friends. It helps people meet aging-related legal and care challenges, through classes and private consultations. Telephone and Internet assistance is also available. Since its inception in 1996, it has helped thousands of older adults, family members and friends. Almost all services are free. H.E.L.P. is located at 1404 Cravens Avenue, Torrance, California 90501. The phone number is (310) 533-1996, and the Internet address is www.help4srs.org