Posted on 10/27/2003 12:44:27 PM PST by jwalsh07
....But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents and independent of her husband. In circumstances such as these, when families cannot agree, the law has opened the doors of the circuit courts to permit trial judges to serve as surrogates or proxies to make decisions about lifeprolonging procedures. See In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990) (affirming In re Guardianship of Browning, 543 So. 2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one. Instead, the trial judge must make a decision that the clear and convincing evidence shows the ward would have made for herself. § 765.401(3). It is a thankless task, and one to be undertaken with care, objectivity, and a cautious legal standard designed to promote the value of life. But it is also a necessary function if all people are to be entitled to a personalized decision about life-prolonging procedures independent of the subjective and conflicting assessments of their friends and relatives. It may be unfortunate that when families cannot agree, the best forum we can offer for this private, personal decision is a public courtroom and the best decision-maker we can provide is a judge with no prior knowledge of the ward, but the law currently provides no better solution that adequately protects the interests of promoting the value of life. We have previously affirmed the guardianship court's decision in this regard, and we now affirm the denial of a motion for relief from that judgment.
"In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did."
(Excerpt) Read more at 2dca.org ...
They claim the right to do this because of the LAWS of the state of Florida. Well, the same legislature that endowed the judiciary with the dubious right of playing God has removed that right in this case.
My thesis is simple. If you support the judiciary ordering the death of citizens absent their informed consent or clear, convincing and consistent evidence that that would have been her choice, then you are supporting the statist position.
Fire away!
But there is more than one issue at play here. I have noticed that many of those here who take the side of removing Terri's g-tube seem to think that those supporting the Florida Legislature changing the law are statists. I'm here to dissuade them of that notion as well as convince them that the only people with Terri's best interests at heart in this discussion are her blood relatives and as such should have been appointed her guardian.
The judge ordering the g-tube removal is an abomination in more ways than one, IMHO.
That's easy enough. Just ask her to dictate and sign an affidavit saying she'd like to be dehydrated to death and have her body burned, get it notarized [a statist element to be sure, but we can live with it], and present it to the judge.
In Schiavo I, we affirmed the trial court's decision ordering Mrs. Schiavo's guardian to withdraw life-prolonging procedures. Schiavo I, 780 So. 2d 176 (Fla. 2d DCA), cert.
Do you approve of that?
744.309 Who may be appointed guardian of a resident ward.--
(1) RESIDENT.--
(a) Any resident of this state who is sui juris and is 18 years of age or older is qualified to act as guardian of a ward.
(b) No judge shall act as guardian after this law becomes effective, except when he or she is related to the ward by blood, marriage, or adoption, or has maintained a close relationship with the ward or the ward's family, and serves without compensation.
(2) NONRESIDENT.--A nonresident of the state may serve as guardian of a resident ward if he or she is:
(a) Related by lineal consanguinity to the ward;
(b) A legally adopted child or adoptive parent of the ward;
(c) A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person; or
(d) The spouse of a person otherwise qualified under this section.
(3) DISQUALIFIED PERSONS.--No person who has been convicted of a felony or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian, shall be appointed to act as guardian. Further, no person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in s. 39.01 or s. 984.03(1), (2), and (37), or who has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.03 or under any similar statute of another jurisdiction, shall be appointed to act as a guardian. Except as provided in subsection (5) or subsection (6), a person who provides substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward, may not be appointed guardian and retain that previous professional or business relationship. A person may not be appointed a guardian if he or she is in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward's best interest. The court MAY NOT appoint a guardian in any other circumstance in which a conflict of interest MAY OCCUR.
Clearly, MS's situation is one in which a conflict may occur because of his new family. The judge has not followed Florida Law in allowing MS to remain as guardian.
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