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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.