I've just spent the last 8 or 9 hours stuck in the Florida Statutes, and posting and highlighting [without the benefit of Front Page(?) excerpts from the law. I was just nearing the end of my project when I finally cross-checked a couple of statutes, and think I hit bonanza. I am getting dizzy and cross-eyed from this, so would appreciate if someone would check the excerpts of the excerpts I was getting ready to post on another thread, and let me know what you think. We have said this many times, but I think I've found the statutes that would disqualify MS from being Terri's guardian SOLELY because of his adultery with the mother of his 1+ children. The way I read it, guardians must pass an 'employment screening test', either a level 1 or a level 2. BOTH DISQUALIFY LEWD AND LASCIVIOUS BEHAVIOR, ONE OF THE DEFINITIONS BEING COHABITING WITH ONE WHO IS NOT YOUR SPOUSE! IF THEY DO NOT PASS THIS TEST, THEY CAN BE DISQUALIFIED FROM GUARDIANSHIP! AM I MISSING SOMETHING? There is actually a little more than the LEWD AND LASCIVIOUS passages, but I am really punchy. Please forgive. Don't want to wast any more time getting this little tidbit out. If you are in a hurry, just scroll down to "*** Check This Out *** (3)DISQUALIFIED PERSONS" and start there. Please see here:
Under GUARDIANS/DISQUALIFIED PERSONS:
"...... A person may not be appointed a guardian if he or she is in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward's best interest. [ Was Terri ever a patient at the hospital where Michael Schiavo works? If not...] The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur.
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The 2003 Florida Statutes
Title XLIII
DOMESTIC RELATIONS Chapter 744
GUARDIANSHIP View Entire Chapter
CHAPTER 744
GUARDIANSHIP ........
......EXCERPTS:
744.1012 Legislative intent.--The Legislature finds that adjudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary. The Legislature further finds that it is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs. Recognizing that every individual has unique needs and differing abilities, the Legislature declares that it is the purpose of this act to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf. This act shall be liberally construed to accomplish this purpose.
[under 'Definitions':]
(8) "Guardian" means a person who has been appointed by the court to act on behalf of a ward's person or property, or both.
(9) "Guardian ad litem" means a person who is appointed by the court having jurisdiction of the guardianship or a court in which a particular legal matter is pending to represent a ward in that proceeding.
. (10) "Incapacitated person" means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of such person.
(a) To "manage property" means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
(b) To "meet essential requirements for health or safety" means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.....
PART IV
GUARDIANS
744.309 Who may be appointed guardian of a resident ward.....
[*****CHECK THIS OUT******]
(3) DISQUALIFIED PERSONS.--No person who has been convicted of a felony or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian, shall be appointed to act as guardian. Further, no person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in s. 39.01 or s. 984.03(1), (2), and (37), !!!!!or who has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under ****s. 435.03 [***SEE NOTE BELOW: LEWD AND LASCIVIOUS BEHAVIOR!!!]or under any similar statute of another jurisdiction, shall be appointed to act as a guardian. Except as provided in subsection (5) or subsection (6), a person who provides substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward, may not be appointed guardian and retain that previous professional or business relationship. A person may not be appointed a guardian if he or she is in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward's best interest. The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur.......
1 744.3135 Credit and criminal investigation.--The court may require a nonprofessional guardian and shall require a professional or public guardian, and all employees of a professional guardian who have a fiduciary responsibility to a ward, to submit, at their own expense, to an investigation of the guardian's credit history and to undergo level 2 background screening as required under s. 435.04. The clerk of the court shall obtain fingerprint cards from the Federal Bureau of Investigation and make them available to guardians. Any guardian who is so required shall have his or her fingerprints taken and forward the proper fingerprint card along with the necessary fee to the Florida Department of Law Enforcement for processing. The professional guardian shall pay to the clerk of the court a fee of $5 for handling and processing professional guardian files. The results of the fingerprint checks shall be forwarded to the clerk of court who shall maintain the results in a guardian file and shall make the results available to the court. If credit or criminal investigations are required, the court must consider the results of the investigations in appointing a guardian. Professional guardians and all employees of a professional guardian who have a fiduciary responsibility to a ward, so appointed, must resubmit, at their own expense, to an investigation of credit history, and undergo level 1 background screening as required under s. 435.03, at least every 2 years after the date of their appointment. At any time, the court may require guardians or their employees to submit to an investigation of credit history and undergo level 1 background screening as required under *******s. 435.03. The court must consider the results of these investigations in reappointing a guardian. This section shall not apply to a professional guardian, or to the employees of a professional guardian, that is a trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state....
744.3135 Credit and criminal investigation.--The court may require a nonprofessional guardian and shall require a professional or public guardian, and all employees of a professional guardian who have a fiduciary responsibility to a ward, to submit, at their own expense, to an investigation of the guardian's credit history and to undergo level 2 background screening as required under *****s. 435.04. The clerk of the court shall obtain fingerprint cards from the Federal Bureau of Investigation and make them available to guardians. Any guardian who is so required shall have his or her fingerprints taken and forward the proper fingerprint card along with the necessary fee to the Florida Department of Law Enforcement for processing. The professional guardian shall pay to the clerk of the court a fee of up to $7.50 for handling and processing professional guardian files. The results of the fingerprint checks shall be forwarded to the clerk of court who shall maintain the results in a guardian file and shall make the results available to the court. If credit or criminal investigations are required, the court must consider the results of the investigations in appointing a guardian. Professional guardians and all employees of a professional guardian who have a fiduciary responsibility to a ward, so appointed, must resubmit, at their own expense, to an investigation of credit history, and undergo level 1 background screening as required under s. 435.03, at least every 2 years after the date of their appointment. *****At any time, the court may require guardians or their employees to submit to an investigation of credit history and undergo *****level 1 background screening as required under ***s. 435.03. The court must consider the results of these investigations in reappointing a guardian. This section shall not apply to a professional guardian, or to the employees of a professional guardian, that is a trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state.......
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The 2003 Florida Statutes
CHAPTER 798
ADULTERY; COHABITATION
798.01 Living in open adultery.
798.02 Lewd and lascivious behavior.
798.01 Living in open adultery.--Whoever lives in an open state of adultery shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Where either of the parties living in an open state of adultery is married, both parties so living shall be deemed to be guilty of the offense provided for in this section.
History.--s. 1, ch. 1986, 1874; RS 2595; GS 3518; RGS 5406; CGL 7549; s. 772, ch. 71-136.
***798.02 LEWD AND LASCIVIOUS BEHAVIOR.--If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.--s. 6, ch. 1637, 1868; RS 2596; GS 3519; RGS 5407; CGL 7550; s. 773, ch. 71-136.
http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0798/ch0798.htm TITLE XXXI
LABOR
CHAPTER 435
***EMPLOYMENT SCREENING
435.01 Applicability of this chapter.--Whenever a background screening for employment or a background security check is required by law for employment, unless otherwise provided by law, the provisions of this chapter shall apply.
History.--s. 47, ch. 95-228.
435.02 Definitions.--For the purposes of this chapter:
(1) "Employee" means any person required by law to be screened pursuant to the provisions of this chapter.....
1 ******435.03 Level 1 screening standards.-- [*****QUALIFICATIONS FOR GUARDIANS******]
(1) All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For the purposes of this subsection, level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies.
(2) Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:.......
****(o) Section 798.02, relating to lewd and lascivious behavior.
(t) Section 825.102, relating to abuse, aggravated abuse, or neglect of an elderly person or disabled adult.
(u) Section 825.1025, relating to lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled adult....
(3) Standards must also ensure that the person:
(a) For employees and employers licensed or registered pursuant to chapter 400, and for employees and employers of developmental services institutions as defined in s. 393.063, intermediate care facilities for the developmentally disabled as defined in s. 393.063, and mental health treatment facilities as defined in s. 394.455, meets the requirements of this chapter.
(b) Has not committed an act that constitutes domestic violence as defined in s. 741.28. [SEE TERRI'S BONESCANS AT TERRI'S WEBSITE TERRISFIGHT.ORG]
****SCREENING LEVEL 2:
*****435.04 Level 2 screening standards.--
(1) All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.
(2) The security background investigations under this section must ensure that *****no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:.......
(t) Section 798.02, relating to lewd and lascivious behavior.
(u) Chapter 800, relating to lewdness and indecent exposure.
(y) Section 825.102, relating to abuse, aggravated abuse, or neglect of an elderly person or disabled adult.
(z) Section 825.1025, relating to lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled adult.
(aa) Section 825.103, relating to exploitation of an elderly person or disabled adult, if the offense was a felony.
[MANY MORE DISQUALIFICATIONS. SEE AT LINK
http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0435/ch0435.htm (o) Section 798.02, relating to lewd and lascivious behavior. (p) Chapter 800, relating to lewdness and indecent exposure.
Thanks so much, Ethan, for all your hard, hard work here.
I think what is happening is that FL, George W. Greer, and indeed much of the USA no longer consider adultery to be a "lewd and lascivious life-style." Adultery is increasingly accepted in American culture. In 1999, the U.S. Senate enshrined adultery (as well as perjury and obstruction of justice) as an accepted form of conduct by the President of the U.S.A. So, if this is good enough for the President "with a good economy," I am sure the American people think it is good enough for a guardian of a helpless Medicaid patient.
Some said Terri is financed by Medicare. Or is it Medicaid in this case? Our elected leaders do not investigate how Michael R. Schiavo can get this kind of service for his "wife" when he is apparently well-to-do.
Probably back in the days of "Leave It to Beaver," a "man" like Schiavo would have been automatically disqualified as a guardian in such a situation. We are 40 years from the time that "Leave It to Beaver" ceased making original episodes though. Things have indeed changed!!!
Thanks for your many hours spent researching this and posting the relevant information.
GOOD WORK!!! GREAT WORK!!! WOW! I'M HAVING THIS SENT TO THE LAWYERS!!!! THANK YOU THANK YOU!
Excellent job Ethan. Now how do we break that down to make sense out of it in lay terms...to address as a concern to the courts?
This statute pertains to court-appointed guardians. Michael Schiavo has never been Terri's court-appointed guardian -- he is automatically considered her legal guardian due to being legally married to her.
A better angle would be to track down laws pertaining to grounds for divorce and presumption of spousal abandonment. If he could be shown not to be her husband anymore, that would end his tenure as her autoimatic guardian.