[kjenerette]

How the Courts Failed Terri Schiavo

The court, in 1997 when Michael announced he was 'engaged' should have immediately conducted a guardianship hearing and transfered Terri to State guardianship. Because of this failure, we are in the present situation.

Questions that need to be immediately considered:

(1) Why did Michael choose to 'ignore' her wishes for nearly 7 years until 1997 when he announced he was'engaged' to Jodi Centonze and 'suddenly' remembered the conversation about life support with Terri from years before?

Respondent answer would most likely rationalize that it took that long before Michael Schiavo realized there was 'no hope for recovery...'

(2) However, the 1992 malpractice suit for $20 million was based on the premise/conclusion that Terri would NOT recover and she would require constant medical care for the remainder of her life estimated by Michael Shiavo and his laywers to be 51 years(which is the normal life expectancey)...Where were her WISHES at that time?

(3) The court, in 1997 when Michael announced he was 'engaged' should have immediately conducted a guardianship hearing and transfered Terri to State guardianship, at a minimum because of the obvious conflict of interest on the part of Michael Shiavo.

The court system failed to act at that point, and that is a major factor on why we are at the point we are today.

(4) Guardianship, by law and practice, is determined to be given to that person who is most heavily 'biased' in favor of the disabled person. Under most conditions this would be the spouse. However, most prudent courts, if during the guardianship period, the appointed guardian by circumstances or accident tilts the 'bias' away from the interest of the person so guarded, would conduct an immediate review, and at a minimum, transfer guardianship to the appropriate State agency.

An additional thought, as I presented it to my class at the university yesterday and I posed the question to the students:

If Terri Schiavo's medical condition, feeding tube et al, was exactly the same as it is, age 25, etc. with the single exception that she was not 'mentally' disabled but had all other functions; and she expressed a desire to have the feeding tube removed and wanted to die, what would we do?

Of course the answer is clear, she would not be allowed to make that 'choice' and would be sent for counselling, etc.

Van & Katherine Jenerette - www.jenerette.com

[M. Dodge Thomas]

"Guardianship, by law and practice, is determined to be given to that person who is most heavily 'biased' in favor of the disabled person."

No.

In a broad sense (and this can get quite complicated in actual situations) the guardianship would be "given" to the person who can best represent the disabled persons interests. For example, when my 93 old father was in the last few weeks of the process of dying of cancer, the person who was "most heavily biased in my fahter's favor" was the immediate family member who wanted to withhold painkillers and put my father a Russian Anti-cancer diet he'd read about on the Internet. This individual was certainly passionate, and he was certainly biased, and he certainly sure he was pursuing my fathers best interests - he also just happened to denial and self-delsuion about the actual options, and had it come down to a legal fight, he didn't have snowball's chance in hell of being placed in control of my father's affairs.

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Folks, the courts were not the problem here.

The reason that around 20 Federal and state judges have consistently ruled they way they have is NOT because they have been seduced by Satan, or are fools or barking mad, or are all members of some shadowy Leftist Conspiracy, or have all been bribed or blackmailed by a bunch of Hospice owners.

The reason they keep ruling they way they do – and the reason they will keep ruling the same way no matter how many times legal maneuvering can force them to consider these issues (at most, we will see re-hearing with the same eventual result) - is because they have been following the law as written by the people’s elected representatives.

And if you want them to do differently, what you want them to do is substitute their personal opinion of what the laws says for what the law actually says - i.e.: you want them to be what around here is called “an activist judge”.

So take a deep breath and say it to yourself again: “The judges are not the problem, the law as written by the legislature is the problem” - because you until begin to accept this you are NOT going to make much progress in either understanding what has happened, or in arranging things it so that something different happens in the future.