Posted on 03/31/2005 6:55:11 AM PST by Eurotwit
Breaking now on CNN
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No, I'm saying that words mean things and they are not just space fillers. In Florida, an incapacitated person has the "right to counsel" despite your feelings on the matter.
OK, I apologize for letting my irritation make more of your first post than was warranted. Have a good day.
Fixed that for you.
Sorry. the law does not give you the right to change it.
"744.3215 Rights of persons determined incapacitated.--(1) A person who has been determined to be incapacitated retains the right:" means something. In any case, a guardian could be anybody depending on the situation.
Regardless of whether or not the guardian can be literally anyone, your argument falls apart the instant we realize that the incapacitated person retains the right to counsel, but by virtue of their incapacity, the guardian is empowered to exercise that right on their behalf - that's what guardians are for, to exercise rights on behalf of others who are not capable of so doing for themselves. It most certainly does not mandate lawyers for incapacitated people, particularly lawyers imposed regardless of the patient's or guardian's wishes. "The concept still applies" - please. That penumbra will be emanating all over you before you know it.
The righteous indignation you have is shared by almost all of us. What we do with it is what will determine whether we make progress in solving the deep problems this country faces right now.
No it doesn't. The guardian is prohibited from some activities. PERIOD.
Don't know about Kryptonite, hopefully he will be back soon. Thanks for the compliment. Thanks for being a great defender of Terri and all the issues that surrounded her murder.
You know, your child has the right to counsel also - that's not affected by their minor status. If your child is arrested or some such, they have the right to counsel. Of course, we don't expect them to exercise that right for themselves, as minors - as a practical matter, they can't. We expect you to exercise that right on their behalf, as their guardian. But now you want to go way, way beyond that, and argue that because your child has a right to counsel, counsel must be provided regardless of circumstance, and regardless of your wishes as a parent and guardian - it is mandatory. "The concept still applies", after all.
You have created a standard for mandatory counsel that would, if applied to others who cannot exercise their rights, effectively terminate your guardianship of your own child, by giving some complete stranger veto power over your exercise of right and authority on your child's behalf. Well, okay - none for me, thanks, but if you're okay with that, it's your choice. Hope you draw a fairly laid back lawyer, and not one who decides that your brand of politics, your religious practice, your standard of behavior is somehow unhealthy for your child.
Which brings us back to the "right to counsel" which is distinct from the right to guardianship and is retained after being declared incapacitated. Can a father's counsel represent his child in a case involving incest by the father?
Oh, I see - we'll justify universal mandatory counsel by defining conflict of interest so broadly that nobody can possibly hope to avoid running afoul of it. Are you sure this is the peg you wanna hang your hat on?
The right to counsel is mandatory because the law states it. Surely "(g) To be properly educated. " is something that a guardian would consider for the well-being of the incapacitated person yet it is explicitly mentioned in the law. Why?
The law doesn't say the incapacitated person must live in court. It mandates the right to counsel.
I do think Terri should have had her own lawyer. There was a potential conflict of interest between both she and her parents and she and her husband. The Guardian Ad Litem should have requested that the court allow one to be hired for her.
Michael Schiavo should have had to use his own funds to hire his own lawyer, and Terri's funds should have been used for her lawyer.
I probably should send a letter to the Florida Bar Association to that effect, it seems like legal malpractice as well as a breach of ethics.
Does the law mandate such an appointment? Should it, and if so, under what circumstances?
The exercise of that right is certainly not mandatory. I have the right to counsel, but nobody is mandating that I hire a lawyer, or that a lawyer be hired on my behalf regardless of circumstance.
Prayer bump.
Then you are saying the law is meaningless. That is just plain senseless. "(g) To be properly educated. " (i) "To receive necessary services and rehabilitation. " etc.
The Rules of Professional Conduct prohibit representation of multiple clients when there is a potential conflict of interest, unless the client consents, which Terri could not do.
RULE 4-1.7 CONFLICT OF INTEREST; GENERAL RULE
(a) Representing Adverse Interests. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client; and
(2) each client consents after consultation.
(b) Duty to Avoid Limitation on Independent Professional Judgment. A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation.
(c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
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