Speculation Sunday

Speculation Sunday
 
The threshold question in a petition under Prob C §2357(b) (authorizing conservator's consent) and §2357(i) (compelling conservator's consent) is whether the conservatee has the capacity to give informed consent to the specified medical treatment.
 
Perhaps the law should better define “specified medical treatment” to mean that a conservatee must demonstrate that they have the capacity to give consent only for that particular treatment. The conservatee need not establish that they have capacity for all types of medical treatment drawing from People v. Brown, supra, 54 Cal.4th at p. 328.
 
 
It appears, that under Prob C §2357subd (i), medical capacity should be its own hearing as this § is not governed by the other provisions under Prob C §2357. It seems that the court would have to find that the conservatee lacks capacity before it could order the conservator to obtain and consent to specified medical treatment. The question remains does the court need to hold a separate evidentiary hearing to find that the conservatee lacks capacity to consent to more invasive procedures such as birth control.
 
This seems to beg the scenario when the conservatee brings forth a petition under Prob C §2357(i) alleging that the conservatee wants the conservator to obtain and consent to a specified medical treatment but the conservator refuses to act. These petitions are very rare but it seems that this has arisen in the case of birth control.
 
 
Prob C §2357 subd (i) states: Upon petition of the conservatee the court may order that the conservator obtain consent for said specified medical treatment to be performed upon the conservatee [or presumably find good cause for denial]. Probate Code §813 defines informed medical consent capacity.
 
 
In regards to Prob C §2357(c) it is preferable to have multiple declarations should be submitted to show the court that the recommended treatment is deemed appropriate by more than one physician.
 
If this decision was made out of concern for welfare for the minor, perhaps in the absence of a very compelling reason it would best for the minor to be born and then allow the juvenile court to determine whether a dependency petition filed and jurisdiction taken over the minor pursuant to Welf & I C § 300 (b). 


Work in Progress.....