Florida statutes forbid the denial of food and water to disabled persons.
Florida's constitution expressly includes a right of privacy, and the Florida Supreme Court held in In re Browning that the right of privacy includes the right to refuse medical care, particularly life-sustaining medical care. Including a feeding tube. That's every Florida citizen's right.
Because this right is considered fundamental, by virtue of its inclusion in the constitution, it is not very difficult to exercise. Indeed, In re Browning decided that, for Floridians, the right could be exercised in writing or orally. If the right could be exercised only in writing, then it would be a weaker right, requiring you to jump through procedural hoops to exercise it. By comparison, a decision-making right that allows you to make a decision by announcing it is a stronger right.
So the decision that you can exercise the right to refuse medical treatment by stating your desires orally is based on the right's importance.
Now, if you can exercise this right orally, can an oral statement negate a prior written wish? Yes. In fact, if you read the facts of the Browning case, you will see that Estelle Browning had executed a document in which she declared she did not wish to be maintained by a feeding tube under certain circumstances, and the state government intervened in her case and argued that her written wishes should not be followed because it was possible that, later, she orally made a decision to the contrary.
Think about that. She said no to a feeding tube. The state embraced the notion she could have revoked that wish through oral statements and argued that because she may have done that, her written wishes should not be followed.
That didn't work -- the court made clear that it would not indulge presumptions someone did or did not say something. But the court indicated that had such oral statements been made, they would control.
So, yes, written wishes regarding end-of-life care can be orally revoked. At least in Florida. They just need to be proved by clear and convincing evidence.
For those who would rather look at a statute than dwell on constitutional principles, take a look at the Florida statute that governs this area. Section 765.104(1)(c) explains that an advance directive -- including a living will -- or the designation of a health care surrogate decisionmaker may be revoked "[b]y means of an oral expression of intent to amend or revoke." Now, keep in mind that the statutes enacted by the legislature cannot conflict with the rights provided in the state constitution, but it is certainly meaningful to see that the legislature has affirmatively recognized the signicance of oral declarations.
In Terri's case, the testimony of her husband and others (including her best friend) provided clear and convincing evidence of Terri's wishes to the Courts.
"They just need to be proved by clear and convincing evidence. "
But how can the judge consider MS's statement "clear and convincing evidence"?
What best friend?
Okay, let's for a moment assume that Michael actually represented Terri's wishes accurately, or that Florida statutes gave him the right as guardian to decide to refuse medical care.
Have we fallen into Lewis Carroll's Wonderland and elected Humpty Dumpty as our judge, so that 'medical care' has been expanded to sips of water or chicken broth because when the judge uses a word it means exactly what he chooses it to mean, neither more nor less?
The order forbade all nourshiment or hydration.
Judge Greer might well have been right as a point of law to order the removal of the gastric tube, but by what fun-house legal logic are you defending an order to forbid ordinary oral feeding when Florida statute, to say nothing of common decency and legal norms established by custom and usage under which persons charged with the care of incompetent persons are culpable for the death of their charges by starvation, explicitly forbid its denial?
All you've told me here is that a living will is not worth the paper it's written on, if someone wants you dead. That's scary.
Is Estelle Browning the woman previously "represented" by George Felos? The one that he "heard" in his head begging to die, although she was, in fact, silent? If so, I hate to think that the evidence of her "oral decision" overriding her earlier living will was, in fact, the auditory hallucination of George Felos.
To Greer. Not to me. I would have ruled differently, based on what I know. I don't think what some 25 year old says after watching a movie has much gravitas, as related by her husband, particularly this husband. But it was Greer's call, not mine.