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!
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.