Posted on 11/04/2003 9:30:54 PM PST by supercat
IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA
PROBATE DIVISION
File No. 90-2908GD-003
IN Re: THE GUARDIANSHIP OF
THERESA MARIE SCHIAVO,
Incapacitated.
ROBERT SCHINDLER, et al.,
Petitioners,
v.
MICHAEL SCHIAVO,
Respondent
//
PETITION TO REMOVE GUARDIAN
AND TO APPOINT SUCCESSOR GUARDIAN
Petitioners, Robert Schindler, Mary Schindler, Robert Schindler, Jr. and Suzanne Schindler Carr, by and through undersigned counsel, pursuant to Fla. Prob. R. 5.660, hereby petition this Court for its Order removing Michael Schiavo ("Schiavo") as Guardian of Theresa Marie Schiavo ("Terri" or "the ward") and appointing one of the wards siblings, Robert Schindler, Jr. or Suzanne Schindler Carr, as successor guardian. Any one of the statutory reasons set forth below is sufficient to require removal of this guardian pursuant to § 744.474, Fla. Stat. In support, Petitioners say:
Failure to Discharge His Duties - § 744.474 (2), Fla. Stat.
husband in name only, and it is upon that legal relationship that his right to be her guardian is based.
been pending, instead of leaving her in a nursing facility where she would receive the services and rehabilitation required by law.4/
falsely stated that Terri could not benefit from physical therapy and other rehabilitative therapies.
Abuse of His Powers - Fla. Stat. § 744.474 (2)
This scheme of abuse, neglect and exploitation includes the provision of certain care and testimony prior to receipt of a substantial medical malpractice award in early 1993, all of which was designed to cast Schiavo in the role of the loving, devoted husband who would spare no expense to see to the medical and rehabilitative needs of his wife for a long, full lifetime.7/
26. After receipt of the award, Schiavos conduct includes every attempt to facilitate the death of Terri before the money ran out.8/
27. Schiavos attempts to increase Terris disability continue, in that Terri has been isolated, information has been withheld from her loved ones, she has been denied basic health and rehabilitative services, her dental, gynecological, and orthopaedic care have been neglected, and her attending physicians visits have been reduced to only three a year, if that. The reduction in the attention of a physician, under Schiavos direction, is particularly insidious because Terri is prone to urinary tract infections, but no medical precautions are taken to identify such infections at an early stage.
28. Indeed, according to Dr. Gambone, her treating physician, no medical attention is provided for such a dangerous infection unless Terri manages to "convince" the nursing staff to call the doctor, a difficult task for one who has received no rehabilitation to enhance her communicative skills.
29. A guardian may exercise only those rights that have been removed from the ward and delegated to the guardian. Fla. Stat. § 744.361 (1) (2002). Nonetheless, Schiavo has abused his position as guardian by directing her caregivers and physicians to deprive her of rights that are retained by Terri under Fla. Stat. § 744.3215, including the right to receive necessary services, rehabilitation and the companionship of others.
The Wasting, Embezzlement, or Other Mismanagement of the Wards Property and the Improper Management of the Wards Assets - Fla. Stat. §§ 744.474 (7) and 744.474 (16)
30. The management of the wards assets has largely been kept a secret and is protected by seal of this court. Nonetheless, what is revealed in this record is that while exhausting Terris money for the purpose of killing her, not one red cent could be found by Schiavo to enhance the quality of her life after receipt of the malpractice award. The use of almost $500,000 of guardianship funds for attorneys fees and costs and the expenditure of nothing for therapy that would reduce the pain of contractures, enhance Terris ability to swallow, or facilitate recovery of basic abilities is the grossest form of asset mismanagement.
31. Schiavos decision to hold Terri at Hospice after it was clear that she was not "terminal" within Medicare guidelines was an improper use of the wards assets.9/ Terris attending physician, Dr. Victor Gambone, agreed at the evidentiary hearing before this Court in October, 2002, that Terri is not terminal and is not in any sort of crisis.
Development of a Conflict of Interest Between the Ward and the Guardian - §744.474 (11)
32. Serious conflicts of interest have arisen since the appointment of Schiavo as guardian. This guardian is not independent and impartial as required by Fla. Stat. § 744.446 (1), and Schiavo has used his fiduciary relationship to advance his private gain at the expense of Terris life. Schiavo admitted in his petition to withhold Terris food and hydration, dated May 8, 1998, that he will inherit the Wards estate and further admitted the likelihood that he would remarry.10 33. This is more than a likelihood now. Schiavo has moved in with his mistress and fathered her baby. The Second District Court of Appeal noted in this case that "there may be occasions when an inheritance could be a reason to question a surrogates ability to make an objective decision." In re Schiavo, 780 So.2d 176, (Fla. 2d DCA 2001)("Schiavo I"). There is now more than an inheritance at stake: a baby will continue to be denied a legally- recognized father every day that Terri lives. 34. Schiavo has repeatedly claimed that divorce will never be an option for him. This leaves only one option for his life plans: Terris death. 35. The conflict of interest arising from the fact that Schiavo will inherit Terris estate has not decreased as the guardianship fund has dwindled. There are other valuable assets of the estate, including Terris engagement and wedding rings that Schiavo has already appropriated to his own use by making jewelry for himself. 36. Schiavos recent involvement in the promotion of his counsels book raises Schiavos interest in Terris image and likeness which he has vigorously sought to preserve for her estate in the guise of protecting her privacy from unwanted intrusion but which may, instead, be groundwork to use her image and likeness for commercial gain after her death. 37. Furthermore, divorce may not be an attractive option for Schiavo, given the likelihood that he would be ordered to pay permanent alimony to help defray the cost of Terris care. 38. Testimony given during the October, 2002, evidentiary hearing in this case raises a question concerning the unexplained cause for Terris extraordinarily rigid neck, first noted when she presented at the emergency room after her collapse in February, 1990. This, together with a 1991 bone scan report that refers to a history of trauma, creates the need to further investigate the cause of the original injury, her care in the interim, and the effect of these injuries on the current diagnosis and prognosis for recovery. 39. Because Schiavo was alone with Terri at the time of the original injury and has been responsible for her care in the interim and in most cases has been the sole source of information about Terris history for her caregivers, there is an obvious and impermissible conflict of interest demonstrated by this failure to investigate these matters. Guilt of an Offense Prohibited Under Fla. Stat. §§ 435.03 and 744.474 (12) 40. Schiavos record residence is a home that, according to his deposition testimony, he owns and lives in with his "girlfriend." This is the same girlfriend who he admitted is the mother of his baby as discussed on the above-referenced national television program. This conduct is a violation of Fla. Stat. § 798.01, which makes living in open adultery a misdemeanor, and § 798.02, which similarly proscribes lewd and lascivious cohabitation. 41. Lewd and lascivious cohabitation is an offense prohibited under Fla. Stat. § 435.03, and Schiavos admissions to the requisite elements of this offense should be found to be guilt that disqualifies him as Terris guardian. 42. Furthermore, Schiavos abuse, neglect and/or exploitation of Terri, a vulnerable adult, should be found to be conduct prohibited by Fla. Stat. §§ 435.03 and 415.111.
Material Failure to Comply with the Guardianship Report - Fla. Stat. § 744.474(13)
43. The guardian is required by law to implement the guardianship plan. Fla. Stat. § 744.361 (4). As alleged herein, Schiavo has consistently failed to implement the guardianship plans in that he has committed to this court that Terri would receive necessary medical care and services when, in fact, such care and services have not been provided. 44. The most recent annual plan contains promised medical services and evaluations that are to obtained "without undue delay." Nine months later, these things have not been accomplished.
Failure to Comply with the Rules For Timely Filing Guardianship Reports - Fla. Stat. §744.474 (14)
45. Throughout his tenure as guardian, Schiavo has repeatedly failed to comply with the rules for the timely filing of guardianship reports. Such reports have been either omitted or not filed on a timely basis, requiring the issuance of more than one order to show cause. Failure to Fulfill the Guardianship Education Requirements - . §744.474 (15)
46. For over a decade, Schiavo flouted the guardian education requirements. His failure to receive the requisite education was an intentional act and did not arise from any ignorance of the requirement. This is further evidence that Schiavo has not taken his obligations to Terri seriously and is unsuitable as a guardian. After Appointment, the Guardian Has Become a Disqualified Person as Set Forth in Fla. Stat. §§ 744.309 (3) and 744.474 (18)
47. Since his appointment as guardian, Schiavo has become a disqualified person within the meaning of Fla. Stat. § 744.309 (3), as set forth below. 48. Schiavo has demonstrated through repeated and gross failures to comply with the law that he is incapable of discharging the duties of guardian. 49. Schiavo is guilty of offenses prohibited under Fla. Stat. § 435.03. 50. Conflicts of interest exist which prevent Schiavo from being independent and impartial as required by Fla. Stat. § 744.446.
WHEREFORE, Petitioners respectfully request that Michael Schiavo be removed as guardian and that Robert Schindler, Jr., or Suzanne Schindler Carr be appointed guardian of Theresa Marie Schiavo. ___________________________ Respectfully submitted, ROBERT SCHINDLER
___________________________ MARY SCHINDLER PATRICIA FIELDS ANDERSON, ESQ. Patricia Fields Anderson, P.A. ___________________________ 447 Third Avenue North; Suite 405 ROBERT SCHINDLER, JR. St. Petersburg, FL 33701 727 / 895-6505; 727 / 898-4903 (fax) ___________________________ SPN 00239201; Fla. Bar No. 352871 SUZANNE SCHINDLER CARR Attorney for Robert & Mary Schindler CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by Certified Mail, Return Receipt Requested, to:
GEORGE FELOS, ESQ. LARRY CROW, ESQ. Felos & Felos, P.A. Law Offices of Larry Crow 595 Main Street 1247 South Pinellas Avenue Dunedin, FL 34698 Tarpon Springs, Florida 34689
DEBORAH A. BUSHNELL, ESQ. GYNETH S. STANLEY, ESQ. 204 Scotland St. 1465 S. Ft. Harrison Avenue, #202 Dunedin, FL 34698 Clearwater FL 33756
PAMELA CAMPBELL, ESQ. ALISON A. CARPENTER 111 Second Ave. NE; Suite 1404 30617 U.S. Highway 19 N., Ste 1101 St. Petersburg, FL 33701 Palm Harbor, FL 34684
and by Hand Delivery to GEORGE FELOS, this 15th day of November, 2002.
____________________________________ PATRICIA FIELDS ANDERSON, ESQ. Attorney for Respondents
[PS--I hope this posts right; the preview window shows it being too wide, but it's funny that way sometimes.
" Where there's life, there's hope."
Under Florida statutes, guardians are forbidden from doing certain things which would not otherwise be legal, including lewd and lacivious cohabitation (except between married people). Unless Michael and Felos can convince a court that Michael's children were not produced by lewd and lacivious means, it would seem difficult for a court to deny the petition. Of course, I wouldn't be too surprised if a judge ruled that reproductive sex was not lewd and lacivious--such a finding would go along with all the other findings of fact in this case.
So this ISN'T a petition for tomorrow? This is the one from LAST YEAR that Greer ignored? What has changed since then that gives us hope Greer will change heart tomorrow?
If you'd like a quick summary of issues, I might recommend reviewing post #6 here, as well #8, #17, #25, #26, #50, and most responses throughout.
-FLE
Bottom line.
Greer is human garbage hiding behind a black robe.
Only his heart is blacker.
Well, I don't think the legislators would have expected anyone to be living with a mistress while retaining guardianship of his wife. But I see no reason why the statute should not be applicable here.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.