But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents and independent of her husband. In circumstances such as these, when families cannot agree, the law has opened the doors of the circuit courts to permit trial judges to serve as surrogates or proxies to make decisions about lifeprolonging procedures.(Ths is the crux of the matter.) See In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990) (affirming In re Guardianship of Browning, 543 So. 2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000).
It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one. Instead, the trial judge must make a decision that the clear and convincing evidence shows the ward would have made for herself. § 765.401(3). It is a thankless task, and one to be undertaken with care, objectivity, and a cautious legal standard designed to promote the value of life. But it is also a necessary function if all people are to be entitled to a personalized decision about life-prolonging procedures independent of the subjective and conflicting assessments of their friends and relatives.
It may be unfortunate that when families cannot agree, the best forum we can offer for this private, personal decision is a public courtroom and the best decision-maker we can provide is a judge with no prior knowledge of the ward, but the law currently provides no better solution that adequately protects the interests of promoting the value of life.
We have previously affirmed the guardianship court's decision in this regard, and we now affirm the denial of a motion for relief from that judgment. At the conclusion of our first opinion, we stated:
In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.
Schiavo I, 780 So. 2d at 180. Nothing in these proceedings has changed this conclusion. The extensive additional medical testimony in this record only confirms once again the guardianship court's initial decision.
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I am not a lawyer First_Salute but I can read English as well as any lawyer that I know thanks to an excellent public school education that is no longer available.
What this Appellate Court has said is that since there is no consensus among the family members indicating clear and convincing evidence of Terri's wishes, the courts will play God and make the decision for the family.
It is astounding. The reasoning of the Appellate Court is that since there is no clear and convincing evidence as witnessed by the various family members, the STATE will decide who lives and dies. Breathtaking in its scope when one really reads this stuff.
Torie, what say you? I trust you're opinion implicitly. Am I reading this wrong or right?
The point here is that the court is operating as a body with a medical power of attorney of last resort. I favor that as a matter of public policy.