Terri Schiavo has passed away

*bump*

Thanks for the polite and informative input on this thread.

Please remove me from your list. I cannot agree with prayer on one post, and spout hate on the next.

Cboldt,

You are very welcome.

general_re,

You wrote: "By my count, that is the fourth time on this very thread that someone has insisted to me that the guardian was "fired"."

If you are referring to any of my posts as the fourth instance, I fear for your counting or reading skills. I plainly stated that Terri's guardian ad litem was dismissed at the behest of George Felos. While I would not take exception to the term "fired," I only quoted it in an opening sentence by way of identifying the subject of your evident obsession with semantics.

You wrote: "And that insistence is invariably deployed in support of some variety of conspiracy theory, whereby the supposed "firing" is taken as "evidence" that the system was somehow illicitly manipulated, by Michael Schiavo, by Judge Greer, by some vast conspiracy that is now encompassing the county ME, and so forth and so on."

"Some variety of conspiracy theory?" Your comprehension deficit astounds me. I gave specific examples of Judge Greer's adjudication bias in Terri's case. This is neither theory nor conspiracy. Each instance is present in the record. You may not share my displeasure at how things were done but you can hardly dispute that they were done.

If Judge Greer's partiality, selectivity and extracanonical jurisprudence escape you, it cannot be for lack of data. Please review the record and tell me what does not match my sober list. Failing that, your retorts will perpetually lack substance.

You wrote: "If I am arguing semantics, sir, it is because words matter, and I refuse to sit back and allow otherwise well-meaning folks to manipulate the language into becoming something it is not."

While your professed linguistic fidelity heartens me, it is not reflected in your response. You inaccurately report me as saying that "the guardian was fired." First, I spoke of the guardian ad litem, not the guardian. Second, I correctly stated that he was dismissed, not fired.

Explain your strange perception of what I said as representing "some variety of conspiracy theory." I gave a straightforward albeit uncomplimentary account of Judge Greer's misrulings. You leave me guessing at how to reconcile your derailed recollection with the stated belief that "words matter." If you stumble over a mere few paragraphs of mine, what hope is there for you to grasp an epic miscarriage of justice spanning a decade?

The frail substance of your responses betrays your source of information about Terri's case as being soundbites from the popular media. These were largely distilled from sludge produced by the litigant with all the money. They hardly offer a solid platform from which to critique opinions reached by spending upward of ten-thousand hours looking at the available material. You should at least register as a subscriber to the Pinellas County digital court records library. If you did some homework, it would make discussing pertinent points with you more promising.

You wrote: "You want an "acknowledging of broad facts"? Then bring me facts, not attempts to weasel your way into an otherwise unsupported conclusion by exploiting the ambiguities of language."

I could appreciate the latent humor if it were not such an embarrassment to you. Had you actually read what I wrote, you would now be cognisant of at least a few facts. The Greer rulings I cited are a matter of record. I also just suggested how you can remedy the abundant gaps in your understanding.

Research, general_re. Don't expect others to do all the work for you. There would be little virtue in that. Besides, nobody can hand you original documents. If this is what you mean by "bring me facts," then you must continue displaying ignorance. It would be more productive for you to refute facts I already cited instead of hoping that anyone will buy your pretense that I did not present any, don't you think?

Now, beyond giving you credit for a cute string of words, I don't know what to do with the "weasel your way into an otherwise unsupported conclusion." For someone claiming to value authenticity you seem to have quite a penchant for sophistry. The conclusions forcing themselves upon anyone willing to look at the scope of this judicial travesty are far too unpleasant to entertain voluntarily, what to speak of acquiring them through weasling. Please try again, this time with feeling.

If you are referring to any of my posts as the fourth instance...

I was not - I was referring to the conversation I was conducting with another poster, the one you saw fit to jump into. Perhaps you should be concerned about your own reading comprehension.

I gave specific examples of Judge Greer's adjudication bias in Terri's case.

No, you did not. At best, you listed a series of decisions you happen to disagree with - at best, several of the things you listed are nothing more than tendentious BS. Let's start with the first:

For most of her subjection to life and death decisions Terri did not have a guardian ad litem although the law entitled her to one. This is analogous to a judge's decision that an incarcerated defendant has no need of the court-appointed lawyer provided for by the law.

Your analogy is garbage, for starters. The Constitution mandates counsel for those accused of crimes, whether the judge likes it or not. A guardian ad litem, on the other hand, is not mandated by law - one is, instead, appointed by the court at the court's discretion, when the court feels it is necessary. So, you've got one fact - some of the time she didn't have a guardian litem - and one piece of worthless spin in the form of a false analogy. Let's move on:

The Schindlers repeatedly and unsuccessfully requested that a GAL be appointed and demonstrated adequate need for one. This is analogous to a judge's refusal to grant a defendant's request for counsel.

The first part of your sentence is undoubtedly true - they requested a guardian at some point, which was unsuccessful. What follows - that they "demonstrated adequate need" - is hardly a fact on the other hand. At best, it is your opinion. You seem like a fairly literate person, but if you're confused on the concept, I'll pencil in some time to explain the difference between "fact" and "opinion", and why I'm not at all impressed by posters who declare their opinions to be fact.

You'd think I wouldn't have to actually tell you this, but when I said bring me facts and not weasel words, I didn't mean "present your opinions as fact", I meant bring me actual facts. So that one falls apart as well, although I note that you close with the same garbage analogy you put forth in your first point - apparently it has some attraction to you, despite its essential bankruptcy. Regardless, downward we go:

All motions to deprive Terri of a GAL came from her guardian, the very person whose ambitions the law seeks to check by means of an independent GAL. This is analogous to the President's requesting that the Judiciary dismiss the Legislature as an unnecessary party to safeguarding the people's interests.

Here we have a sterling example of my favorite waste of time - the completely worthless fact. Well, of course motions against the guardian ad litem came from her husband - he disagreed with the necessity of having one. If everyone agreed with everyone else on everything, we wouldn't need courts in the first place. Oooooo, how sinister - he had a different opinion. Well, that's why we have courts, to adjudicate competing claims and render a decision.

At least, on the other hand, you did strain yourself to compose a new, albeit equally worthless analogy, to close out your third "fact". It is absurd to compare the request to either not require or dismiss a guardian ad litem to the President attempting to "dismiss" Congress via the courts, not least of which because guardians ad litem exist at the pleasure of the court - they are dismissed and retained at the court's discretion. You may be a bit fuzzy on the workings of our constitutional government, so let me refresh your memory a bit - Congress does not exist at the discretion of the courts. Unlike a guardian ad litem, the courts cannot "dismiss" Congress. Not even if you ask them really nicely. So that analogy is ridiculous on its face also. But bravely we soldier on:

On a motion by Felos Judge Greer dismissed the initial GAL after he advised that aspects of Michael Schiavo's guardianship were potentially detrimental to the ward's interests. This is analogous to the mayor's dismissing the police for uncovering corruption in the city council.

Ah, yet another favorite of mine - the selective fact. Oh, and a little post hoc fallacy thrown in for good measure. Did you also know that Pearse unequivocally agreed with the diagnosis of PVS? The Schindlers vehemently disagree with that diagnosis - maybe they had Pearse removed as detrimental to their interests.

See? Wasn't that fun? With a little care in selecting your facts, you can spin any sort of conclusion you like. As for your analogy...well, I'm sure you can guess by now that this ain't gonna be pretty. This is not, of course, in any way analogous to the mayor dismissing the police for uncovering corruption. Unlike the police, the guardian ad litem was empowered for a limited time and required to produce his report for the court to consider. Once that's done, his job is done. The court can either retain him to consider more issues, or it can thank him for his work and send him on his way. Needless to say, this is not how police forces are retained, not by any mayor anywhere in this country, not even Marion Barry.

Now, shall I really continue with this, or have I wasted enough time on your "facts" already? Don't bring me this pile of crap and then presume to lecture me on the necessity of doing one's own research. You want me to acknowledge some facts? Then I suggest you get out there and find some that are worth my time, because this dog's breakfast you've brought me tonight is no such thing.

general_re,

You wrote: "I was not - I was referring to the conversation I was conducting with another poster..."

Your response was addressed to me and included the phrase "this is the forth..." If your reference was to a different, earlier poster, you should have written "such and such was the fourth time that..."

"At best, you listed a series of decisions you happen to disagree with - at best, several of the things you listed are nothing more than tendentious BS."

You wrote: "The Constitution mandates counsel for those accused of crimes, whether the judge likes it or not. A guardian ad litem, on the other hand, is not mandated by law - one is, instead, appointed by the court at the court's discretion, when the court feels it is necessary."

Your reading of the law is sadly lacking, general_re.
F S 744.3215(l) (The right of persons determined incapacitated to counsel and 2003 FS 744.3215(k) (The right of persons determined incapacitated to have access to the courts)places the guardian ad litem not at the discretion of the judge, as you wrongly hold, but specifies it as a RIGHT. Moreover, the pertinent statutes are under the heading RETAINED RIGHTS OF PERSONS ADJUDICATED INCAPACITATED. This means that they are inalienable rights and can neither be nullified by the court nor transferred by the court to a surrogate such as the legal guardian.

You wrote: "So, you've got one fact - some of the time she didn't have a guardian litem - and one piece of worthless spin in the form of a false analogy."

First, I hold that Terri was deprived of a guardian ad litem for MOST of the time, not some of the time. Second, I stated that Judge Greer dismissed the GAL at the behest of the opposing counsel. Considering that Greer's ruling wrongfully deprived Terri of her RETAINED RIGHTS TO COUNSEL AND ACCESS TO THE COURTS, and that this was due to the judge's favoring one of the litigating parties, my analogy holds. Your use of the vituperative "worthless spin" merely underscores your abysmal ignorance of the text of the statutes.

You wrote: "The first part of your sentence is undoubtedly true - they requested a guardian at some point, which was unsuccessful. What follows - that they "demonstrated adequate need" - is hardly a fact on the other hand."

First, I said that the Schindlers REPEATEDLY requested the reappointment of a GAL, not "at some point," as you misquote. Second, the demonstration of adequate need is implicit in the text of the statute. Why do you think Florida lawmakers went to the trouble of putting the GAL in a specially protected category of RETAINED RIGHTS? A constitutional equivalent of retained rights would be inalienable rights. In the second line, the demonstration of adequate need for a GAL was tied directly to enumerated violations of the guardianship laws by Michael Schiavo. I will later in this post append a partial list of them because it will also answer the questions by another poster. So, the Schindlers brought to Judge Greer's attention that the guardian Michael Schiavo stood in violation of a great number of laws written to protect incapacitated persons. One of the GAL's functions is to see to it that the legal guardian is qualified and adheres to existing guardianship laws. Even if the Schindlers' listing of the guardian's infractions had only been suspicions, Judge Greer was bound to afford Terri the protection of the law, which included her representation by a GAL. As it stood, however, the Schindlers actually had proof of the infraction. That proof, by the way, still exists. You consider this to be mere disagreement with the judge's opinion? If so, you are saying that a judge is not bound by the written law. Is that your intent?

You wrote: "At best, it is your opinion. You seem like a fairly literate person, but if you're confused on the concept, I'll pencil in some time to explain the difference between "fact" and "opinion", and why I'm not at all impressed by posters who declare their opinions to be fact."

Please review the statutes I list. These are not my opinion. They were written by Florida lawmakers and express the intent, not the opinion of the law. If a protective statute is labeled a RETAINED RIGHT, it means that no court has the authority to remove the right. I am not at all confused about this. You, by contrast, fail to differentiate between a judge's legal mandate to find within the law and his renegade decision to ignore the law. It is the judge who utters OPINIONS, and these opinions cannot be diametrically opposite the letter and intent of the law. Is that too difficult for you to grasp? The law said that the GAL was Terri's RETAINED RIGHT, and the judge nullified that right. The law said that the judge was not authorized to transfer Terri's right to counsel, and the judge went ahead and transferred it to Michael Schiavo, allowing him to decide whether or not Terri should have the GAL. Which part of contravening the law don't you understand in this?

"You'd think I wouldn't have to actually tell you this, but when I said bring me facts and not weasel words, I didn't mean "present your opinions as fact", I meant bring me actual facts."

Honestly, general_re. Where do you get off the hair-splitting trail? I am quoting the laws by chapter and title. I am stating what Judge Greer did. It is well within your capacity to verify both. What other mysterious ingredient is lacking to qualify as fact to you? Use my references to read the law verbatim. Use my references to check Judge Greer's rulings. Compare them. Don't waste time accusing me of having merely stated opinion. Show me that a law I cite does not exist or that an action I attributed to Judge Greer was not committed. Do that or hold your tongue.

You wrote: "Here we have a sterling example of my favorite waste of time - the completely worthless fact. Well, of course motions against the guardian ad litem came from her husband - he disagreed with the necessity of having one. If everyone agreed with everyone else on everything, we wouldn't need courts in the first place."

Is there anything about the legislative term RETAINED RIGHT that slips past your attention, general_re? Terri cannot at once be guaranteed an inviolable right by the law and make its necessity subject to someone else's opinion. Neither Michael Schiavo, nor George Felos, nor Judge Greer had the option to disagree with Terri's need for the GAL. The law does not make this right subject to a needs assessment. It is simply a right retained for the duration of the guardianship. It is not realtive but absolute. It is not conditioned upon the presence of qualifying factors. It is not something to be granted on due consideration. No, it is an intrinsic, tamperproof right. Do you follow?

You wrote: "Oooooo, how sinister - he had a different opinion. Well, that's why we have courts, to adjudicate competing claims and render a decision." A retained right is not subject to differences of opinion. It is not subject to interpretation by jurisprudence. It is not a component of any "competing claims." It is RETAINED. Courts are neither needed for nor authorized "to adjudicate" it. Please do a little homework, general_re, so that I do not have to continue reciting fundamentals for your benefit.

You wrote: "It is absurd to compare the request to either not require or dismiss a guardian ad litem to the President attempting to "dismiss" Congress via the courts, not least of which because guardians ad litem exist at the pleasure of the court - they are dismissed and retained at the court's discretion."

By now you should have realized how far off the deep end you are with this. Terri's retained right to the GAL did NOT "exist at the pleasure of the court!" The Gal was NOT "dismissed and retained at the court's discretion!" The law does not say that it is a retained right "unless..." The law proveds for no circumstances under which an incapacitated person can be stripped of that right. The law does not allow a judge or a guardian to assume that the incapacitated person might wish to relinquish the retained right. I challenge you to find any published legal opinion that attributes anything remotely discretionary to the statute.

You wrote: "You may be a bit fuzzy on the workings of our constitutional government, so let me refresh your memory a bit - Congress does not exist at the discretion of the courts."

I don't feel fuzzy about this, general_re, but you seem to be a bit fuzzy on the workings of the law, so let me refresh your memory a bit -- A retained right does not exist at the discretion of the courts.

You wrote: "Unlike a guardian ad litem, the courts cannot "dismiss" Congress. Not even if you ask them really nicely. So that analogy is ridiculous on its face also."

Neither "can" a judge nullify an incapacitated person's retained right to counsel and access to the court. A judge did do exactly that though, which can hardly be seen as anything less than a renegade act. Theoretically, the courts supported by military power controlled by the president could "dismiss" Congress. History is replete with instances of coups d'etat. Likewise, a judge can indeed contravene a person's guaranteed right. If your imagination is insufficient to catch the purport of analogies, just skip them, general_re. They are meant for people who are able to free themselves from literalist compulsions and extract the intended ratio of principles.

You wrote: "This is not, of course, in any way analogous to the mayor dismissing the police for uncovering corruption. Unlike the police, the guardian ad litem was empowered for a limited time and required to produce his report for the court to consider. Once that's done, his job is done."

Quite to the contrary, general_re. The retained right to counsel is NOT "empowered for a limited time." The law did not intend the GAL to be in service to the court "to produce his report for the court to consider." It is not the court that retains the right to the GAL but the incapacitated person! The GAL is meant to serve the interests of the incapacitated person, not those of the court or of the guardian. The law intended the GAL as a component of a system of checks and balances. If you understood the function of the GAL as the law envisions it, you would also understand the analogy I drew. It is possible for a judge to remove an incapacitated person's GAL when the GAL turns out to be unqualified or tainted in some way. In that case, however, the incapacitated person's right to a GAL cannot be simply ignored henceforth. A suitable replacement should be found as soon as possible to afford the incapacitated person proper counsel during ungoing litigation.

You wrote: "The court can either retain him to consider more issues, or it can thank him for his work and send him on his way. Needless to say, this is not how police forces are retained, not by any mayor anywhere in this country, not even Marion Barry."

Your description of the GAL's function is farcical. That is not what the law intended by making the GAL an incapacitated person's retained right. In some ways the GAL very much functions like the police, protecting the incapacitated person against defrauding, mistreatment, neglect or misrepresentation by the guardian. In Terri's case, Pearse -- in his policing capacity -- revealed the guardian's conflict of interest. Schiavo, the person thus implicated, reacted by requesting the GAL's removal. Judge Greer acquiesced. As I said though, forget the analogies if the abstractions strain your imagination.

"Now, shall I really continue with this, or have I wasted enough time on your "facts" already? Don't bring me this pile of crap and then presume to lecture me on the necessity of doing one's own research."

Honestly? I hope that you do not continue with this wasting of time. It is clear that you are neither equipped with the facts nor able to recognize them when they are enumerated.

Randi,

Under Florida Statutes pertaining to the rights of disabled persons, the right to necessary services (which by definition includes nutrition and hydration) is a retained right.

This means that it cannot be conveyed by court to a surrogate such as a guardian or a state official. The statutes section below should suffice to make that clear. In addition, Florida Statutes and the Americans with Disabilities Act specify nutrition and hydration as guaranteed rights. I do not have time to find these for you now, but if you are truly interested your own research will uncover them.

765.309 Florida Statute: Mercy Killing of Euthanasia Not Authorized; Suicide

Distinguished. -- (1) Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act of omission to end the life other than to permit the natural process of dying. [My comment: Death resulting from the deliberate withholding of oral hydration cannot be remotely considered a "natural process of dying," any more than choking someone's neck to prevent respiration could be.]

(2) The withholding or withdrawal of life-prolonging procedures from a patient in accordance with any provision of this chapter does not, for any purpose, constitute a suicide. [My comment: While removing a feeding tube can be classified as "withdrawal of life-prolonging prodedures," refusing to hydrate by mouth cannot. The oral intake of air or fluids cannot be categorized as life-prolonging procedures, otherwise such acts as strangling a person to death could also be construed as the removal of a life-prolonging procedure.]

458.326 Florida Statute: Intractable Pain; Authorized Treatment. -- (4) Nothing in this section shall be construed to condone, authorize, or approve mercy killing or euthanasia, and no treatment authorized by this section may be used for such purpose. [My comment: The statute makes it clear that only the blocking of interference with natural death is permitted. Bringing about someone's death by withholding oral oxygenation or hydration is not the same as letting someone die naturally. The statute places all forms of medically hastening death beyond its natural course in the prohibited category of mercy killing or euthanasia. It makes no difference whether this hastening is effected by the administration of a drug or the blocking of a person's natural ability to respirate or hydrate.]

782.08 Florida Statute: Assisting Self-Murder. -- Every person deliberately assisting another in the commission of self-murder shall be guilty of manslaughter, a felony of the second degree, punishable as provided in s.775.082, s. 775.083 or s.775.084. [My comment: This statute takes care of the argument that mercy killing may be permitted if the person specifically requests it. The law says that it is NOT permitted. If you are not actually dying from imminent organ failure, and you request that you be given a drug to make you stop breathing, or that people prevent water from reaching your mouth, the law considers this a request for being assisted in suicide. If anyone acquiesces to your wish, that person commits a second degree felony. If this is done without your wish, it is a first degree felony.

In Terri's case, the best argument that can be made is that sometime in the mid-1980s she stated that she would not want to be kept alive by "anything artificial." Although feeding tubes were at that time not included under the definition of life-sustaining procedures, even interpreting Terri's alleged statement as pertaining to feeding tube removal, it can neither contextually nor legally be interpreted as a desire to being refused oral hydration or nutrition. However, even if such an interpretation could be forced onto Terri's alleged statement, the law would still not permit it. The statutes are unambiguous in forbidding anything other than allowing a person to die naturally, i.e. from organ failure not brought about via external interference.]

I will append a letter I wrote a couple of years ago to be used by people wishing to urge State Attorney McCabe to investigate Michael Schiavo's contravention of Florida statutes. To the best of my knowledge these infractions have yet to be addressed.

Dear State Attorney McCabe,

On 11-15-2003 I sent you a letter urgently requesting that you begin a comprehensive investigation into past and ongoing violations of Florida law under the mandate
of Florida Statute 415.104. I brought to your attention serious breaches of Florida laws by Mr. Michael Schiavo in connection with his guardianship of Terri Schindler-Schiavo, a disabled Florida adult.

In my letter I asked for a speedy transmittal of my report to all appropriate law enforcement agencies. My reading of the law confirmed that FS 415.104 mandates that you begin investigating allegations within a 24-hour period. To date, I have not had a response from you. I will alert you once more to the high probability of these felony crimes before looking into remedies against your apparent refusal to act in accord with the directives provided by the law.

All of the following allegations concern past and ongoing abuse and neglect of vulnerable Florida adult, Theresa Schindler-Schiavo by her estranged husband and guardian, Michael Schiavo. Specific prosecutorial guidelines are provided in the Statutes under pertinent sections titled “punishable under”.

By unlawful guardianship commissions and omissions, Mr. Schiavo denied Terri the retained right to be restored to capacity at the earliest possible time. This failure to allow guaranteed services is further aggravated by related denials of rights protected under the Americans with Disabilities Act.

For ten years up to the present time Mr. Schiavo explicitly forbade medical personnel to provide therapy for Terri that could accomplish speedy restoration to which the law entitles her. By this he knowingly and willfully contravened Section 744.3215(1)(c) of the 2003 Florida Statutes.

Mr. Schiavo also denied his disabled adult ward essential rehabilitative therapy enumerated along with other services as retained rights in the 2003 Florida. By this he knowingly and willfully contravened Section 744.3215(1)(i), which states that "The right to receive necessary services and rehabilitation is a retained right.”

Regardless of the current medical debate regarding Terri’s precise diagnosis, the law states that retained rights, including the right to necessary rehabilitative therapy may not be delegated to the guardian (Section 744.3215(3)), because the ward retains these rights for the duration of guardianship. The law is furthermore clear in extending no authority to the court to waive, remove or delegate the retained right to receive necessary services and rehabilitation.

Section 765.401 pertaining to termination of life-prolonging procedures does not permit the guardianship court to prohibit such therapy, or to convey authority to do so to the guardian. By seizing such non-conveyable authority and by actively prohibiting such therapy, Mr. Schiavo proved himself delinquent in the lawful exercise of guardianship and stands in violation of Florida law.

Mr. Schiavo’s violations include but are not limited to obstructing Terri’s retained right to the service necessary for rehabilitating her swallowing function. The need for this rehabilitation is underscored by the guardianship court’s recent order to have Terri’s feeding tube removed. Without adequate use of swallowing muscles Terri is in danger of death. By this unlawful act, Mr. Schiavo additionally violated and continues to violate Terri’s Constitutional right to life.

The guardianship court’s deferral to Mr. Schiavo’s claims that his wife wished to remain free of artificial life support cannot be construed to indicate her wish to die from lack of the basic necessities of food and water. At the time of her alleged expression of an aversion to artificial life support, feeding tubes were not included under that definition. That inclusion did not occur until the passage of an amendment to the Florida Statutes in 1999. As you well know, new legal definitions cannot be retroactively applied to prior situations.

Nothing in the court’s findings indicates that Terri would consider oral feeding or the necessary therapy to facilitate it a violation of her privacy. If that is
not the case, then the withdrawal of food and water and the therapy necessary to facilitate oral feeding must be regarded as an invasion of her privacy and an assault against her person. By no interpretation of the law can Terri be said to have relinquished her retained right to receive necessary rehabilitative therapy.

Therefore Mr. Schiavo’s refusal to honor these rights is in direct contravention of Florida law and constitutes a punishable felony under Section 744.3215(1)(i).

In contravention of 2003 FS 825.102(3)2., Mr. Schiavo failed to request an investigation indicated when a bone scan of Terri’s body revealed multiple fractures and head trauma. In defiance of a court order, he then failed to inform Terri’s family of the discovery and proceeded to have the record of these injuries sealed for over ten years. By these acts, Mr. Schiavo additionally raises suspicions of his possible complicity in the causation of Terri’s injuries. This possibility must be investigated under criminal statutes in addition to those pertaining to neglect, abuse and aggravated abuse of a disabled adult.

In contravention of 2003 FS 744.3215(1)(a) (The right of persons determined incapacitated to have an annual review of the guardianship report and plan), Mr. Schiavo failed to provide the mandatory guardianship report and plan for three consecutive years.

In contravention of 2003 FS 744.3215(f), Mr. Schiavo moved Terri into hospice three years ago without the mandatory certification by two physicians, thereby falsely imprisoning her and preventing her from being in a more health-supporting environment such as the one Terri’s family is willing to provide for her.

He forbade free and unsupervised visits to Terri by her parents and siblings, despite evidence that their presence provides warmth and comfort to her.

In contravention of 2003 F S 744.3215(l) (The right of persons determined incapacitated to counsel and 2003 FS 744.3215(k) (The right of persons determined incapacitated to have access to the courts), Mr. Schiavo caused the dismissal of and failed to replace Terri’s Guardian ad Litem, thereby depriving her of her retained rights to counsel and access to the courts.

Mr. Schiavo has been and is in the process of committing class 3 and class 2 felonies under Sections 825.102(1), (2) and (3) pertaining to abuse, aggravated abuse and neglect of an elderly person or disabled adult.

In contravention of 2003 FS 825.102(1), Mr. Schiavo forbade the rendering of basic oral hygiene to Terri, thereby increasing the possibility of dental disfigurement and loss. He forbade the application of standard joint mobilization movements, and by thus impacting Terri’s lymphatic activity and suppressing her immune system put her at risk of disease, loss and disfigurement.

Upon the Governor’s issue in October of this year of a specific executive order to replace Terri’s feeding tube, Mr. Schiavo endangered her life by instructing his lawyer Barbara Bushnell to threaten medical personnel with lawsuits, should they obey the law by reinserting Terri’s feeding tube.

During the period immediately preceding the executive order, he forbade the administration of the Last Rites of Terri’s faith, in particular the spiritual comfort of Holy Communion, thereby causing spiritual anguish and loss of salvatory hope. By this act, Mr. Schiavo additionally violated Terri’s civil right to the exercise of her religion.

In contravention of 2003 F S 825.102(2)(b), Mr. Schiavo forbade the placing of a washcloth to prevent Terri’s fingernails from cutting into her palms, thereby increasing the risk of painful, disfiguring lacerations and health-threatening infections.

He failed to repair or permit the replacement of a broken wheel chair that would allow Terri to be taken outdoors, thereby depriving her of the comfort and the health-giving effects of fresh air, sunshine and auditory stimulation.

He reduced the possibility of beneficial therapy by illicitly holding Terri in a death-oriented hospice for three years, despite the fact that she showed no signs of impending physical death. By this act, Mr. Schiavo additionally violated Federal Statutes mandating a diagnosis of “terminal” by two independent physicians prior to placement in hospice.

In contravention of 2003 FS 825.102(2)(c) Mr. Schiavo endangered Terri’s life by seeking to prevent the realization of an executive order by Governor Bush to
replace Terri’s feeding tube, despite the fact that the Florida Legislature had empowered the Governor through passage of a specific law.

In contravention of 2003 FS 825.102(3)(a)1., Mr. Schiavo forbade the administration of standard antibiotics for infections resulting in pain, possible disfigurement and potentially fatal sepsis. He refused to allow Terri’s
examination by neurology specialists, thereby diminishing Terri’s opportunities to benefit from new therapies discovered during the ten years that he had deprived her of therapy altogether.

He failed to allow Terri to receive treatment by a speech therapist, thereby depriving Terri of opportunities to demonstrate consciousness and communication facility.

He ordered the removal from Terri’s room of faith inspiring and comforting symbols of her religion, thereby neglecting Terri’s spiritual well being.

He ordered the removal from Terri’s room of pictures of her loved ones, comfort-giving items from her past and objects that could provide beneficial sensory stimulation, thereby diminishing Terri’s opportunity for gaining responsiveness.

The above and other felony offenses by Mr. Schiavo are punishable as provided in s. 775.082, s. 775.083, or s. 775.084 and other sections of the criminal statutes.

In light of these alleged multiple felony violations by Mr. Schiavo I urgently request that you investigate his behavior and make the necessary reports to law enforcement within the specified time frame. It is of the utmost urgency that you carry out your mandate as Attorney General of the State of Florida and protect Terri Schindler-Schiavo, a vulnerable adult, against further neglect, abuse and other harm from Mr. Schiavo.

Please contact me at the earliest possible time to inform me of the course of action you are taking in this matter of grave concern. I specifically request that you inform me in case there are additional steps I should take to ensure that these allegations are investigated by you in the spirit of Florida Statute 415.104 and all applicable Florida laws.

Please be aware that I will consider an absence of additional instructions from you as your agreement that my report to you followed proper protocol and that you will treat it with all diligence described by Florida law.

(The right of persons determined incapacitated to have access to the courts)places the guardian ad litem not at the discretion of the judge, as you wrongly hold, but specifies it as a RIGHT.

No, it does not. The law specifies that an incapacitated person has the right to a guardian - it does not specify that a guardian ad litem must be appointed, and there is no legal reason that Michael Schiavo cannot serve the functions of a guardian ad litem, unless and until the court determines that a conflict renders him unable to serve as a proper guardian of his wife's interests. Please don't make thing up, not when anyone can go read the statute and see you're just plain full of it.

Second, I stated that Judge Greer dismissed the GAL at the behest of the opposing counsel. Considering that Greer's ruling wrongfully deprived Terri of her RETAINED RIGHTS TO COUNSEL AND ACCESS TO THE COURTS, and that this was due to the judge's favoring one of the litigating parties, my analogy holds.

You can't be serious. Who else was going to object? Who else had standing to object? You cannot possibly take the fact that one party was successful as evidence of "bias" - one of them was inevitably going to be successful. By this absurd "logic" of yours, if the judge had ordered the retention of the guardian ad litem that would be "evidence" of some sort of bias against Michael Schiavo. Which is frankly, ridiculous.

Second, the demonstration of adequate need is implicit in the text of the statute.

Oh, it's "implicit" is it? Which penumbra are you emanating that stinky little business from? So much for conservative jurisprudence, strict constructionism, or any of those things - principles get in the way of what we want, so we'll just toss them out in favor of "implicit" readings of the law. Hey, you're in good company, though - Harry Blackmun found an "implicit" right to privacy and abortion in the constitution. Sheesh.

That proof, by the way, still exists. You consider this to be mere disagreement with the judge's opinion?

Yeah, basically, because that's all it is. If it were perfectly crystal clear to everyone whether some law applied or not, we wouldn't need judges at all. We'd all just look at the situation, and the correct answer would be immediately obvious to everyone.

But we don't live in that kind of fantasy, your efforts to declare otherwise notwithstanding. The fact is that opinions vary on whether someone has violated the law, what the law means, whether some law applies to some situation. That's why we appoint judges, to sort among the competing claims and exercise their judgement. You may cartainly disagree with that judgement, and your opinion may even be a better supported one than the judge's, but to pretend that your opinions are objective fact is simply ridiculous. Get over yourself - you are not some oracular font of objective truth.

It is the judge who utters OPINIONS, and these opinions cannot be diametrically opposite the letter and intent of the law. Is that too difficult for you to grasp? The law said that the GAL was Terri's RETAINED RIGHT, and the judge nullified that right.

See, here you go making stuff up again - the law says that a guardian is a right. It does not specify that it must be a guardian ad litem. Oh, wait - I forgot. You have some sort of crystal ball which allows you to divine the true meaning of the law, nevermind the language. What was I thinking?

Show me that a law I cite does not exist or that an action I attributed to Judge Greer was not committed. Do that or hold your tongue.

Well, gosh, I think I'll just settle for showing that your interpretation is BS and that your reasoning is worthless. Sorry I don't have your permission to post in that manner, but then again I don't recall the TOS here specifying that your permission is necessary for me to post, newbie.

You see, the whole problem you have is that where the law actually says "guardian", you're getting all squishy on me and adding extra words that aren't there to make it into "guardian ad litem". Well, it'd sure make things easy for you if that were so, but unfortunately, it's pretty obvious that since your case is entirely built on an incorrect reading of the law, you've built your house on sand here. I'm sorry to be the one to break it to you, I'm sorry you've embarrassed yourself in public like this, but that's a real fact right there - the law says "guardian", not "guardian ad litem" no matter how much leftist jurisprudence you're prepared to employ.

general_re,

You are grasping at straws.

Come to terms with the fact that Florida statutes declare counsel and access to the courts as retained right. Seek to understand the term retained as signifying guaranteed. Disabuse yourself of the notion that anyone other than the incapacitated person holds that right. Realize that "counsel" only refers to the guardian ad litem, not to the guardian, whose functions are dealt with in other sections of the law. Give up your convulsive clinging to the silly distinction between "right" and "must have."

The retained right means that the incapacitated person cannot be without a guardian ad litem in a matter before the court. It is not up to a judge to determine that there is no need for one. It is entirely contrary to the intent of the law for the guardian to suggest that there is no need for a GAL. The law does not make it the judge's function to determine whether there should be a GAL.

Frankly, your pathetic attempts to dissimulate don't speak well of you. Admitting that you don't know would be a lot more honorable than your transparent pretense. Enjoy your ruminating.

Say hi to Harry for me.

You have freepmail.

you have FReepmail.

While the ineptitude of responses by someone calling himself general_re will be obvious to those familiar with the pertinent statutes, he did manage to create a dust cloud. That presumably was his sole intent in the first place, since no other rationale can explain his labored obfuscations. I will therefore clarify some of the terms and concepts he mishandled.

This general_re presents himself as someone devoted to fact, yet he is extremely opportunistic in his choice of designations. For instance, he labels me a "newbie," when it is easy enough to determine that I began posting at FR in the fall of 2003. His treatment of topics pertinent to Terri's case is similarly sloppy. So much for general_re's professed standard of accuracy.

The good general_re appears to be singularly bent on butchering the definitions of "guardian" and "guardian ad litem." He holds, for example, that an incapacitated person's legal guardian can also be the same patient's guardian ad litem. This is utter nonsense. The guardian ad litem exclusively represents the ward's interests before the court (hence the title), primarily to protect the ward against potential infringement of rights by the guardian.

In another instance of confusing powers general_re claims that the ward's guardian may challenge the justification for a guardian ad litem. That is not how the law sees it. The supervised is not meant to be in a position to question the law's wisdom in providing a supervisor. That he would want to do so under certain circumstance is conceivable, but the law does not grant him that privilege. I find general_re's assertions in that respect sadly banal.

The most egregious flaw in general_re's claims pertains to the court's relationship with the guardian ad litem. The right to counsel (i.e. to be represented before the court by a guardian ad litem) is listed as one of the "Retained Rights of Persons Determined Incapacitated." The 15 retained rights are found in Florida Statutes, Title XLIII, Domestic Relations, Chapter 744, Guardianship. It seems that general_re is oblivious to the significance of retained rights and confuses them with others separately classified as "Rights that May be Removed from a Person by an Order Determining Incapacity and which May be Delegated to the Guardian..."

With customary abandon general_re pronounces that the retained right to counsel is "at the court's discretion." Worse, he holds that it may be contested by the guardian against whose errors it is meant to safeguard in the first place. He further confuses the judge's authorized function of APPOINTING the guardian ad litem (which means simply to ensure that the GAL meets necessary qualifications) with the judge's non-existent discretion to determine WHETHER a GAL should be appointed. The latter is not within the judge's jurisdiction because having a GAL is the ward's retained right for the duration of guardianship.

The law provides for a GAL in all guardianship matters before the court. It is not for the guardianship court or for the legal guardian to decide whether or not the ward's interests should or should not be represented before court by a guardian ad litem. A legal guardian's petition to do away with the guardian ad litem, or a judge's decision to adjudicate the ward's affairs without hearing from a GAL amounts to removing the ward's retained right that by definition cannot be removed.

The unambiguous language of the law escapes general_re when he writes at length about how the need for interpreting laws justifies the very existence of judges. He misses that retained rights are not subject to interpretation. That is why they are being separately classified and referred to as retained rights. Under Florida law, Terri should have been exclusively represented before Judge Greer by a court-qualified guardian ad litem in all matters touching upon her interests.

In general_re's alien perception the need for the GAL is a matter of "opinion" and thus debatable. No, it is not. It is a matter of straightforward law, explicitly insulated against judicial interpretation by means of the designation "retained."

In Terri's case the dictate of the law was underscored by the dictate of logic. A guardian ad litem might have been dispensable had Judge Greer's rulings affected nothing more serious than Terri's residence. To healthy reason the GAL should certainly have seemed essential though to proceedings deciding something as consequential as Terri's life or death. Yet neither the dictate of law nor the dictate of logic seems to penetrate general_re's unusual density any better than it did Judge Greer's.

The general_re finds it reasonable that Judge Greer refused letting Terri have another GAL after he dismissed the first one for resisting the idea that she be killed by means of dehydration. After the passage of Terri's Law Judge Demers was mandated to appoint a GAL for Terri. In this instance the GAL was additionally charged with a fact-finding mission on behalf of Governor Bush, who was litigating in connection with Terri's Law. In this second instance it was thus the governor who invoked Terri's retained right to a GAL. Even so, the court found a way to contravene the law by removing that one also.

The governor is on record stating that more information was needed from Terri's GAL, but Demers terminated Wolfson after he recommended Terri be given a swallowing test. Both instances of the GAL's dismissal can be directly connected to recommendations the GAL made on Terri's behalf. The court thus not only illegally deprived Terri of her inalienable retained right, but did so for manifestly mercenary reasons. Had either GAL vigorously asserted the need for Terri to die, he would not likely have been removed by the court. To general_re's supposedly precise thinking neither the demonstrable contraventon of the law nor the evidently utilitarian motives for it seems to pose much of a problem.

It is apparent that general_re skirted the bulk of guardianship transgressions by Michael Schiavo that I presented. My finding problems with the way Judge Greer allowed Terri's guardian to break guardianship laws falls into the category of "opinion," according to general_re. Strange. The law mandates a course of action. Michael Schiavo fails to obey it. Jugdge Greer does not censure or dismiss him for it, yet the only thing wrong that general_re finds in this is my unfavorable opinion of it.

I wrote that Judge Greer repeatedly condoned the guardian's skipping his statutory duty to file the annual guardianship plan. The law makes this a qualification for guardianship, but general_re attributes my seeing this as problematic to mere "opinion."

Never mind that Section 744.3675 of the Florida Statutes demands: "Each guardian of the person must file with the court an annual guardianship plan which updates information about the condition of the ward. The annual plan must specify the current needs of the ward and how those needs are proposed to be met in the coming year." The statute explicitly includes "provision of medical, mental health, and rehabilitative services in the coming year."

The statute also makes it incumbent upon the court to "review the initial and annual guardianship report to determine that the report "meets the needs of the ward." Michael Schiavo covered the entire mandate of the plan with the word "NONE," and not even that for three years of his guardianship -- all without raising Judge Greer's concerns or helping him recall Terri's retained right to a guardian ad litem. The only thing wrong with this, according to general_re is for me to disagree with Judge Greer's decisions.

Section 744.368 (8) adds: "The approved report constitutes authority for the guardian to act in the forthcoming year. The powers of the guardian are limited by the terms of the report."

A simple reading of this reveals that the guardian's authority is CONDITIONED upon meeting these qualifications mandated by the law. The lawmakers clearly intended to ascertain that the guardianship plan would meet the ward's needs in each upcoming year, and that this plan must be submitted ahead of time in order to be reviewed and approved.

The statute says that the guardian's actions are limited to items specified in the plan for the upcoming year. Florida law thus grants the guardian legal authority ONLY within the context of the pre-submitted plan, and only if it was reviewed and approved by the guardianship court. Yet judge Greer found it fine that there was either no guardianship plan for him to review or approve, or that the "plan" consisted of just the single word "NONE." This appears perfectly legal and proper to general_re's precise thinking and any questioning of it is attributable to "some variety of conspiracy theory." With precise thinkers like that, who needs blundering fools?

For the guardianship plan due prior to the July 2001-June 2002 year Judge Greer granted Michael Schiavo six extensions. In other words, the plan upon which the guardian's authority for that year was to be predicated had not shown up yet three years later! Yet Judge Greer, even when repeatedly alerted to this, saw no need to question Michael Schiavo's qualifications as a guardian, nor a need for Terri to enjoy the protection of the guardian ad litem guaranteed her by law.

In general_re's view this is all as it should be, and there is no reason to suspect bias on Judge Greer's part. In general_re's perception of legal propriety it is evidently not required of a guardianship judge to see to it that the guardian comply with guardianship statutes, or to at least protect the ward by having a guardian ad litem see to it.

The law specifies that failure to meet statutory guardianship requirements is to be treated as "contempt of court," but that is of no more import to general_re than it seems to have been to Judge Greer. Such things are "optional" and "discretionary" in general_re's wonderfully precise world. It seems to be a world in which legal protections guaranteed by the law are entirely meaningless. Statutes are just pretty designs on paper. What really counts with general_re is "the pleasure of the judge." The rest is all irrelevant opinion.

Is it just me, or do others too get a sense of deja vu about this hunky dory world of general_re's and the merry judges'? I find this world eerily reminiscent of post-Weimar Nazi Germany, and I strongly dislike it. That, of course, is only an opinion, as general_re would no doubt hasten to point out. Why stem the healthy flow of dead bodies by insisting on trivial and optional things like statutory requirements, retained rights and impartial jurisprudence?

Great analysis!

He holds, for example, that an incapacitated person's legal guardian can also be the same patient's guardian ad litem.

Absolutely false - I never said any such thing. I pointed out, quite correctly, that the law entitles an incapacitated person to a guardian, not a guardian ad litem. They are not the same thing, although whatshisface the new guy would like you to believe that they are, so that where the law says "guardian", we can substitute "guardian ". This is simply false, and a sterling example of traveling beyond the text of the law in order to achieve some desired end result. Ladies and gentlemen, allow me to introduce Harry Blackmun - let's give him a big round of applause.

In another instance of confusing powers general_re claims that the ward's guardian may challenge the justification for a guardian ad litem. That is not how the law sees it.

Also false - what the law allows is for the guardian to challenge the guardian ad litem as being biased or otherwise unfit to serve as a neutral advocate of the incapacitated person's interests. This is objectively true, and undeniable - Michael Schiavo did just that, just as the law allows. This notion that the guardian ad litem "supervises" the guardian is a distortion of what the purpose of a guardian ad litem is for - it is to provide an impartial advocate of the incapacitated persons interests, insofar as they can be determined. It is not to "supervise" the guardian, it is so that the courts can have a representative of the patient's interests, where the guardian is not able to make such a representation. Michael Schiavo does not answer to any guardian ad litem, they both answer to the court.

With customary abandon general_re pronounces that the retained right to counsel is "at the court's discretion."

Also false. Here you confuse the guardian ad litem with counsel, and assume that they are one and the same. They are not. A guardian ad litem can be a lawyer, but it can equally well be your grandmother. In which case, as your advocate, your guardian ad litem is expected to retain counsel for you as necessary, not automatically. If there is no guardian ad litem, your legal guardian is expected to retain counsel for you as necessary. To claim that counsel must be apppointed in all cases of incapacity is simply false, and the product of a mind that is so bent on achieving the desired end that reason cannot penetrate. This is simply not how it's done.

The latter is not within the judge's jurisdiction because having a GAL is the ward's retained right for the duration of guardianship.

Again, anyone left reading this can simply look up the law to see that you're simply making that up right out of thin air. The rights specified for incapacitated persons include the right to a guardian, not a guardian ad litem. You apparently believe you have some inside track on what the law implies, but the fact is, that's not what the law says. This is law-reading straight out of the liberal playbook - ignore the text and invent a "real" meaning.

The general_re finds it reasonable that Judge Greer refused letting Terri have another GAL after he dismissed the first one for resisting the idea that she be killed by means of dehydration.

Straight out of the liberal's debate handbook - when in doubt, simply invent beliefs for your opponent and insist that they subscribe to them. I have nowhere stated that it was "reasonable" to deny the appointment of a guardian ad litem, simply that it was defensible under the law as it currently exists, which clearly, it is. A thoughtful conservative might conclude that therefore, in order to prevent this situation from happening again, the law should be changed by the legislature. A hyperemotional liberal, on the other hand, will insist that the judge ignore the text of the law in favor of some sort of presumed "implied meaning", and make up new laws himself. I think not.

Is it just me, or do others too get a sense of deja vu about this hunky dory world of general_re's and the merry judges'? I find this world eerily reminiscent of post-Weimar Nazi Germany, and I strongly dislike it.

LOL - and now we see the final denouement of this hyperemotionalism, a descent into simple smears. I disagree with the methods, therefore I must disagree with the goals. Why not just label me a "death cultist" and be done with it? That way, you can pretend that I don't deserve your wit and wisdom, and you never would have found yourself sinking in this swamp of your own making.

Well, that's just goofy. I point out the law, in order to demonstrate that the law is the problem, and my thanks for pointing out a better course of action is to gather unto myself hints of fascism and Naziism. It is the last refouge of a scoundrel, to abandon any pretense of rational discussion and simply engage in a smear campaign designed to foreclose any discussion on the subject whatsoever. If you can't answer me, you'll simply shut me up by labeling me a fascist.

But then, discourse wasn't really the point of your post to begin with, was it? What sort of person spends all that time composing a lengthy response, but then is too afraid to ping the person to whom he is responding? What are you afraid of, that I might answer you again? LOL - get off my thread. You haven't got the brass to run with the big dogs, son.

Your thoughtful & rational contributions to this thread are appreciated.

Your thoughtful & rational contributions to this thread are appreciated.

Well said.

Who was paying for her care?

Well, miracles do happen.

The usually vacuous hyperboles by general_re are beginning to take on a semblance of substance, it seems. I find this encouraging. This said, the good general_re still has catching up to do in the areas of actually knowing what he is talking about and keeping his pontifications on this side of the truth. Regardless, his notably more polite tone does offer hope for his eventual rehabilitation.

Before looking into his muddy pseudo-expositions of legal purport, I am curious about by what circuits in the general_re's overtaxed mind I have somehow come into dubious association with Harry Blackmun. Should we view it as the general_re's awkward emotional appeal for help from charitably inclined readers of this thread or merely as the symptom of perhaps a mild form of Tourette's Syndrome? Be that as it may, I derive nearly as much mirth from imagining myself as a Blackmunnie as I do from the general_re's dated schoolyard phraseology "whatshisface the new guy."

Here goes our respondent: "I pointed out, quite correctly, that the law entitles an incapacitated person to a guardian, not a guardian ad litem."

The general_re's idea of "quite correctly" leaves much to be desired. Note that he does not reciprocate with my habit of actually citing title, chapter and section of statutes but typically confines his appeals to nebulous terms like "the law." (I admit that I use this shorthand also, but rarely before first providing a bona fide statute citation.) So, the general_re claims that "the law" entitles an incapacitated person to a guardian, not a guardian ad litem. Here is what I had quoted "the law" to actually say:

>>The right to COUNSEL (i.e. to be represented before the court by a guardian ad litem) is listed as one of the "Retained Rights of Persons Determined Incapacitated." The 15 retained rights are found in Florida Statutes, Title XLIII, Domestic Relations, Chapter 744, Guardianship. It seems that general_re is oblivious to the significance of retained rights and confuses them with others separately classified as "Rights that May be Removed from a Person by an Order Determining Incapacity and which May be Delegated to the Guardian..."<<

In textbook fashion the general_re projects his own confusion onto me now: "Here you confuse the guardian ad litem with counsel, and assume that they are one and the same. They are not. A guardian ad litem can be a lawyer, but it can equally well be your grandmother."

It would have to be a rather well-trained grandmother, but it is true that lay persons are occasionally entrusted with the role of guardian ad litem. Nevertheless, why should the general_re find it necessary to elevate a given to the level of special notice? Of course the guardian ad litem would retain a lawyer in those rare circumstances that he himself is not a lawyer and is faced with challenging a legal decision on the ward's behalf.

With or without an extra lawyer, it is still the guardian ad litem whom the guardianship statutes designate as "counsel" to represents the ward in legal matter before the court. It is this representation -- distinct from that of the legal guardian -- that the law protects under the heading of "retained right to counsel." If, as the general_re imagines, the statute referred to something as mundane as just the "right" to hire a lawyer, it would hardly be necessary to make it a "retained right," would it? Anyone can hire a lawyer at will, without first having the act be specially protected as a retained right.

There is a reason why lawmakers took the extraordinary precaution of protecting incapacitated persons by making their "right to counsel" an inalienable right. That reason is the possibility that either the court or the legal guardian may seek to prevent the incapacitated person from being represented by a guardian ad litem, a guardian before the law. The chronology of Terri's case shows that this in fact occurred.

Now the general_re compounds his labyrinthine fumbling with this gem of ineptitude: "In which case, as your advocate, your guardian ad litem is expected to retain counsel for you as necessary, not automatically."

No, the guardian ad litem IS your statutorily mandated counsel. That is what, according to the law is "automatic." The hiring of the extra lawyer is a step taken by the guardian ad litem in his capacity of being the ward's counsel.

Contrary to the general_re's belief, the term "counsel" is not exclusive to persons with a law degree. You may be a plumber and still serve as your own counsel in a legal defense. Counsel refers to the role of advocating before the court. The role of counselor is not bestowed upon a guardian ad litem through the act of hiring a lawyer. It is his by virtue of the law's empowering him to advocate before the court on the ward's behalf.

Continues the general_re: "If there is no guardian ad litem, your legal guardian is expected to retain counsel for you as necessary."

This idea is hillarious in view of the fact that in a good number of instances intervention by a guardian ad litem is necessitated by omissions on the legal guardian's part. Let's take it on faith that the general_re's hypothesis is predicated on the assumption that the legal guardian is on the up and up and wishes to dispute a court-finding against his ward.

What is the legal guardian's proper sequence in such a case? Hire a lawyer? No, the legal guardian would first invoke the ward's retained right to counsel, i.e. a guardian ad litem. To omit that step and hire a lawyer instead would not speak well of the guardian's intentions.

The good general_re seems to think that the guardian ad litem and a lawyer hired by the legal guardian are equivalent and interchangeable entities. They are not. His scenario "if there is no guardian ad litem" does not lead to "your legal guardian is expected to retain counsel for you as necessary." The proper step in the scenario would be "your legal guardian is expected to invoke your retained right to counsel, i.e. to a guardian ad litem."

Deeper into the mud sinks our worthy general_re: "To claim that counsel must be apppointed in all cases of incapacity is simply false, and the product of a mind that is so bent on achieving the desired end that reason cannot penetrate. This is simply not how it's done."

What is bent here is the general_re's misquoting me. I have never held that "counsel must be appointed in all cases of incapacity." I did cite the statute though that makes the right to counsel an inalienable right. This means that when the incapacitated person's fate is being decided at court, the law guarantees automatic representation by a guardian ad litem.

The law wisely refrains from having the legal guardian alone speak for the ward in consequential matters before the court and instead assigns that role to the guardian ad litem. The guardian ad litem's law-given role is to speak for the ward before the court when serious decisions about the ward's future are being contemplated. The legal guardian's law-given role is to administer the ward's day-to-day affairs in accord with a court-reviewed and approved plan. These are the roles.

From the clear language of the statute it follows that when the court ponders consequential decisions about the ward's future, the law provides for a guardian ad litem to stand before the court as the ward's duly empowered representative. Needless to say, the court is not bound to accept what the guardian ad litem says on the ward's behalf, just as the court is not bound to accept what a competent person says on his own behalf. The court is obliged, however, to follow the statutory mandate of having a guardian ad litem speak for the ward in matters of grave legal consequence. Since we are talking about Terri's case here, it should not be difficult to imagine that life and death decisions fall into the category of grave legal consequence.

Despite my verbatim citation, the general_re seems to categorically reject the existence of the retained right to counsel, but worse, he does not even acknowledge a relative scale of invocation. If counsel need not "be appointed in all cases of incapacity," would the general_re kindly provide us with a level of urgency at which counsel SHOULD be appointed? Might a court's pondering the possibility of dehydrating the ward into oblivion qualify as being sufficiently urgent? One should think that the statute protecting the retained right to counsel envisioned less drastic scenarios of invocation.

Undaunted by law or reason, the general_re moves on with his fantasy tour into a legal parallel universe: "Also false - what the law allows is for the guardian to challenge the guardian ad litem as being biased or otherwise unfit to serve as a neutral advocate of the incapacitated person's interests."

The GAL is supposed to be FOR the ward. Aside from the fact that "advocate" and "neutral" are mutually exclusive terms in the context of counsel, a legal guardian's challenging the guardian ad litem on grounds of bias should be treated by the court with exceptional caution. Why?

By definition, both the legal guardian and the guardian ad litem are meant to protect the ward's wellbeing and rights. From the point of view of the legislative intent, no particular role is foreseen for the legal guardian to ascertain the guardian ad litem's qualification. By contrast, such a role is very much foreseen for the guardian ad litem with respect to the legal guardian's qualification.

Thus, when the guardian ad litem finds problems with the guardian's qualifications, it behooves the court to closely investigate allegations because they are being offered in the context of the guardian ad litem's statutorily mandated function. When the implicated legal guardian responds by accusing the guardian ad litem of bias, chances are that this counter-charge has a strong component of self-interest.

The court should therefore apply a higher evidentiary standard to such a counter charge. When a court consistently and repeatedly finds in favor of the legal guardian, the public is entitled to be given an abundance of hard facts proving the GALS' bias or incompetence. From all appearances neither Greer nor Demers bothered with demonstrating Pearse's or Wolfson's bias. In both cases they seem to have simply taken Felos' word for it. Moreover, they used the occasions of dismissing the GALS to then deprive Terri of a GAL altogether while legal decisions of the gravest consequences were continued being made over her head.

The general_re's foray into praising extrastatutory jurisprudence continues: "This notion that the guardian ad litem "supervises" the guardian is a distortion of what the purpose of a guardian ad litem is for - it is to provide an impartial advocate of the incapacitated persons interests, insofar as they can be determined. It is not to "supervise" the guardian, it is so that the courts can have a representative of the patient's interests, where the guardian is not able to make such a representation. Michael Schiavo does not answer to any guardian ad litem, they
both answer to the court."

This sounds plausible but is manifestly false. The law does provide a supervisory function for the guardian ad litem, not with regard to the legal guardian's conduct of the ward's everyday affairs, but in the course of the legal guardian's bringing the ward's matters before the court.

When, as in Michael Schiavo's case, the legal guardian petitions the court to apply far-reaching decisions to the ward's case, the guardian ad litem is to ascertain that this is done with proper consideration of the ward's interests and needs, rather than for the purpose of benefitting the legal guardian. It is within the guardian ad litem's job description to supervise the legal guardian's actions before the court.

Pearse, for instance, discharged his duties properly by finding Michael Schiavo tainted by a conflict of interest when he petitioned the court to end Terri's life. Pearse indicated that the legal guardian in this case lacked the qualifications for requesting this adjudication. Wolfson was less vehement in his supervisory work but did find that the legal guardian needed to requalify his standing in the matter before the court by first permitting a swallowing test for Terri. In both instances the guardian ad litem challenged one or the other qualification of the legal guardian to litigate about the ward. This fits the definition of supervision because it acknowledges the guardian ad litem's facility to require the legal guardian to meet certain conditions.

The stalwart general_re also took exception to this statement of mine: >>The latter is not within the judge's jurisdiction because having a GAL is the ward's retained right for the duration of guardianship.<< He concocted the following retort: "Again, anyone left reading this can simply look up the law to see that you're simply making that up right out of thin air."

"Look up the law?" I have already quoted it verbatim. The issue is not the law but the general_re's pathological refusal to accept the term "retained" as the absolute designation that it is.

To emphasize the contrast, I quoted verbatim the disparate heading for those laws not thus protected as retained: "Rights that May be Removed from a Person by an Order Determining Incapacity and which May be Delegated to the Guardian..."

What is the general_re's difficulty in understanding that "retained right" means that a right is beyond a court's jurisdiction? It does not allow for interpretation. It does not allow for nullification. It does not allow for reassignment. It does not require the ward to ask for permission. It does not allow the guardian to question its validity. It does not depend on a judge's finding it necessary or unnecessary.

How many variants of absolute and inviolable will it take for the general_re to understand what must be clear to a grade-schooler after perhaps two examples? I have already dismantled the general_re's puerile attempt to distinguish between "counsel" and "guardian ad litem." They are one and the same in the context of the guardianship statute. Counsel may consist of any number of lawyers, but the group is headed by the guardian ad litem.

Without the guardian ad litem there is no counsel in as far as the guardianship statutes are concerned. The general_re is beginning to resemble one of those lead-filled standup toys. No matter how many times they get pushed over, they'll pop right back up. He seems to be impervious to the methodology of proof that prevails in most parts of planet earth.

With untroubled confidence he then confabulates: "The rights specified for incapacitated persons include the right to a guardian, not a guardian ad litem. You apparently believe you have some inside track on what the law implies, but the fact is, that's not what the law says. This is law-reading straight out of the liberal playbook - ignore the text and invent a "real" meaning."

No inside track is required here. Plain reading will do. It is law-reading straight out of the Florida statutes, specifically the chapter and sections that enumerate the 15 retained rights. The sections in question read as follows and begin with the qualifyer RETAINED:

744.3215 Rights of persons determined incapacitated.--

(1) A person who has been determined to be incapacitated retains the right:

(a) To have an annual review of the guardianship report and plan.

(b) To have continuing review of the need for restriction of his or her rights.

(c) To be restored to capacity at the earliest possible time.

(d) To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.

(e) To have a qualified guardian.

(f) To remain as independent as possible, including having his or her preference as to place and standard of living honored, either as he or she expressed or demonstrated his or her preference prior to the determination of his or her incapacity or as he or she currently expresses his or her preference, insofar as such request is reasonable.

(g) To be properly educated.

(h) To receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.

(i) To receive necessary services and rehabilitation.

(j) To be free from discrimination because of his or her incapacity.

(k) To have access to the courts.

(l) To counsel.

(m) To receive visitors and communicate with others.

(n) To notice of all proceedings related to determination of capacity and guardianship, unless the court finds the incapacitated person lacks the ability to comprehend the notice.

(o) To privacy.

For odd reasons the general_re acknowledges the existence of subsection (e) To have a qualified guardian, but not of subsection (l) To counsel.

Despite the clarity of language in the statute, the general_re says something to the effect that, yes, the law insists that the ward have a guardian but not counsel, or at any rate, counsel doesn't mean guardian ad litem.

Yes, it does. Counsel in the context of guardianship means guardian ad litem. Guardian ad litem is the function that counsel performs on the ward's behalf in consequential matters before the court. Lawmakers saw fit to write this office into the statutes as "counsel." Had they consulted with the general_re before finalizing the wording, they would no doubt have written "guardian ad litem."

There seems no end to the general_re's sophistry. He writes: "I have nowhere stated that it was "reasonable" to deny the appointment of a guardian ad litem, simply that it was defensible under the law as it currently exists, which
clearly, it is."

Far from it! Denying the appointment of a guardian ad litem is NOT defensible "under the law as it currently exists." It is no more defensible than denying the appointment of a guardian or the removal of ANY of the 15 retained rights. The 15 retained rights are presented as a group without distinction. One of them is not more valid than any of the others. None of them is dispensable. None can be removed, nullified, transferred or denied. They are RETAINED.

Ever-ready to stick his foot in his mouth, the tireless general_re resumes: "A thoughtful conservative might conclude that therefore, in order to prevent this situation from happening again, the law should be changed by the legislature. A hyperemotional liberal, on the other hand, will insist that the judge ignore the text of the law in favor of some sort of presumed "implied meaning", and make up new laws himself. I think not."

Even if I saw merit in being "a hyperemotional liberal," I would shudder at suggesting that "the judge ignore the text of the law." To the contrary, I insist that the judge OBEY the text of the law. The self-satisfied general_re, however, does seem to suggest that the judge ignore the text of the law. How else could he proclaim that denying the appointment of a guardian ad litem is "defensible under the law?" Categorically not, and especially not when the ward's fate is being decided in court!

Not uncharacteristically, the general_re's foraging through my post made him abpruptly stop at the list of guardianship laws Michael Schiavo broke under Judge Greer's well-wishing eyes. I quoted the laws, described how they were broken and how Judge Greer failed to take the remedial actions mandated by law. The good general_re took all of that in flight and brushed it off as hyperemotional liberalism.

It thus seems that the general_re does feel comfortable with a system in which judges defy the law with impunity. It is laughable for him to suggest that "the law should be changed by the legislature," while he finds holding judges to existing law a mere liberal pastime.

I ended my last post with an honest description of what I think about a system that allows renegade judges to ignore the laws they are sworn to further. >>I find this world eerily reminiscent of post-Weimar Nazi Germany, and I strongly dislike it.<<

As was to be expected, the general_re, who for unknown reason thinks of himself as a conservative, quipped: "LOL - and now we see the final denouement of this hyperemotionalism, a descent into simple smears."

Smears? Not at all. The undiscriminating acceptance of renegade judges that is evidenced by the general_re's selective and opportunistic reactions to detailed listings of judicial improprieties deserves being compared to the complacency that allowed the rise of European fascism. If the shoe does not fit, the general_re is at liberty to revise his ill-placed permissiveness and to take a more attentive look at the chronology and the implications of Terri's case.

The general_re seeks to cover the reek of his intellectual dishonesty with choice vituperatives and silly schoolyard slogans: "But then, discourse wasn't really the point of your post to begin with, was it? What sort of person spends all that time composing a lengthy response, but then is too afraid to ping the person to whom he is responding? What are you afraid of, that I might answer you again? LOL - get off my thread. You haven't got the brass to run with the big dogs, son."

If "the big dogs" consist of fumbling yappers like the general_re, I find little attraction in running with them. I write for those who have a sincere interest in uncovering whatever truth can be salvaged from the ploughed-under accounts of Terri's case. I will address anyone directly who cares to conduct a rational dialogue, but I have no time to babysit some general-re's prepubescent ego.

I write for those who have a sincere interest in uncovering whatever truth can be salvaged from the ploughed-under accounts of Terri's case.

LOL. You mean, "I write for people who are going to uncritically swallow whatever I shove in front of them". Sorry, my man - that just ain't me. Have fun with your little choir, though. As for whose argument carries the day, I'll leave it to history to decide.

general_re,

Now that you are dispensing with invectives I don't mind saying hello. I wish
though that you would not find it necessary to presume upon my motives. I neither
practice uncritical swallowing, nor find it attractive in others. Being capably
opposed refines one's grasp. There is a difference, however, between genuine
skepsis and unabashed prejudice. Your manner of speech does occasionally betray
shades of the latter.

As far as the idea of a contest is concerned, may your argument carry the day.
My interest is not in the art of rhetoric, although I hold my own on subjects I
cherish. Here I only wish to correct misinformation about a case I researched
extensively.

As for history, we could probably engage in another long and likely fruitless
discussion. What survives is usually the version sanctioned by the dominant side.
Applied to the judicial travesty known as Terri's case, it is possible that the
final tale will wind up being close to the one you seem to favor. Still, one has
to honor the conviction in one's heart and not be overly concerned with gaining
or losing popularity in the process.

Warm regards,
TS

Who was paying for her care?<

Ask Michael Schiavo. He wouldn't let Terri's parents take her home to care for her.