The Blog

The Rule of Terri's Case Strikes Again

Terri's parents are held to the letter of the law; the man who is trying to kill her is given heaping amounts of "judicial discretion."

11:20 AM, Jan 30, 2004 • By WESLEY J. SMITH
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

THE "RULE OF TERRI'S CASE" has struck again. The term was coined by Pat Anderson, attorney for Terri Schiavo's parents Bob and Mary Schindler, who complained: "If following a legal procedure will likely result in Terri dying, it will be adhered to. But if a procedure could make that outcome more difficult to attain, it will not be followed."

Anderson's complaint has ample evidentiary support. For example, under Florida law, Terri should have a court-appointed guardian ad litem to exclusively represent her interests. But, Judge George Greer, of the Sixth Judicial Circuit, refused to allow one for Terri in the guardianship case ever since her first ad litem was dismissed after recommending that she not be dehydrated to death.

Similarly, "Terri's Law," the new statute that permits Florida's governor to suspend the planned removal of a feeding tube in certain cases, also requires the appointment of a guardian ad litem. This was done. But after the ad litem Jay Wolfson urged that she be allowed a swallow test, David A. Demers, chief judge of the Sixth Judicial Circuit, refused to renew his authority. This, despite Governor Jeb Bush specifically informing Demers that he needed further information from Wolfson to properly carry out the governor's responsibilities under Terri's Law. So, once again, Terri is without the protection of a guardian ad litem.

And now Judge Greer has repeatedly allowed Michael Schiavo to skirt his statutory duty to file mandatory annual guardianship plans to establish a ward's approved plan of care for the coming year. This appears to be a direct violation of the applicable Florida Statutes, which read in part:

Each guardian of the person mustfile 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. (Section 744.3675; emphasis added)

Most important for the Schiavo case, the plan must describe the "plan for provision of medical, mental health, and rehabilitative services in the coming year." If a guardian fails in this duty:

The court shall order the guardian to file the report within 15 days after the service of the order upon her or him or show cause why she or he should not be compelled to do so. (Section 744.3685)

Moreover:

The court must review the initial and annual guardianship report to determine that the report: (a) meets the needs of the ward . . . (Section 744.369 (4); emphasis added)

And:

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. (Section 744.368 (8); emphasis added)

In other words, the guardianship plan is supposed to be reviewed by the court prospectively, not retrospectively, which makes sense since its purpose is to ensure that the plan is appropriate to the ward's future needs. (This is not the same thing at all as reviewing an accounting of past expenditures.) Moreover, the approved guardianship plan constitutes the guardian's authority to act, and the guardian's actions are limited by the contents of the plan in the coming year. Thus, it would appear that a Florida guardian of the person has no legal authority in the absence of an approved plan.

Yet, despite these very clear statutory mandates, Judge Greer only shrugs his shoulders at Schiavo's apparent unwillingness to file annual plans. Indeed, he has instead six times granted Schiavo's requests for "time extensions" for the July 2001-June 2002 plan. It is now almost 3 years late. He also just approved a time extension permitting Schiavo further time to file his guardianship report that should have been in place between July 2002 and June 2003. By granting these repeated extensions Judge Greer sends a clear message to Michael Schiavo: I am not going to require you to comply with the statutes.

THIS MAKES a mockery of the rule of law. The guardianship plan is intended to establish the plan of care and grant the guardian authority to act in the year ahead. This means that the plans for 2001-2002 and 2002-2003, as opposed to reporting about previous guardianship activities, are utterly irrelevant at this point. Moreover, Greer should have long since ordered Schiavo into court to explain his failure to file a July 2003 to June 2004 annual plan, which the law permits to be punished as contempt of court. Not only that: Since there is apparently no current court-approved annual guardianship plan in effect for Terri, based on the above cited statutes, it would appear that Michael Schiavo has no legal authority over Terri's care.