IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

PROBATE DIVISION

 

 

 

In Re: The Guardianship of

File No. 90-2908GD-003

THERESA MARIE SCHIAVO,

 

Incapacitated.           

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PETITION FOR EXPEDITED JUDICIAL INTERVENTION, INTERIM JUDICIAL REVIEW AND OTHER EXPEDITED RELIEF

 


Petitioners, ROBERT and MARY SCHINDLER, by and through undersigned counsel pursuant to Rules 5.705 and 5.900, Florida Probate Rules, and Sections 744.371 and 744.3715, Florida Statutes, and, hereby petition this Court for an order requiring the implementation of a medically directed and supervised plan of transition to ensure the ward’s (“Terri’s”) ability to drink fluids and ingest food without harm, delaying the removal of the feeding tube until such transition has been effected, directing that the guardian refrain from directing any health care provider with respect to the ward until such time as the Petition to Remove Guardian is ruled upon, appointing a guardian ad litem and appointing a qualified limited guardian of the person for medical, mental, personal and social care services, and in support hereof say:

1.              The petitioners are “interested persons” within the meaning of the Florida Guardianship Law.

2.              This petition is timely and proper as it relates to the authority of the guardian in that a petition for interim review may be brought at “any time” and the guardian is exceeding his authority under the guardianship plan and is not acting in the best interests of the ward. 

3.              This petition is timely and proper as it relates to the need and timing of medical treatment procedures in that the failure to provide rehabilitation and a transition protocol will assuredly endanger Terri’s life, if not kill her.

4.              A hearing is scheduled to be held on September 11, 2003 “solely for the purpose of  entering a new order scheduling the removal of the nutrition and hydration tube.” [1]Schindler v. Schiavo (In re Guardianship of Schiavo), 851 So. 2d 182 (Fla. 2d DCA 2003).  Other than this narrow mandate, this Court retains jurisdiction over this guardianship.  §744.372, Fla. Stat.


5.              Given the guardian’s repeated representations to this Court that the withdrawal of the tube will cause Terri to die, it is clear that the guardian intends to prevent the oral administration of food and water.  It is this act of prevention that is intended to cause Terri’s death.[2]/

6.              In derogation of Terri’s rights, the guardian has prevented any rehabilitation or therapy that would assure a successful and non-life threatening transition from the feeding tube to oral intake.  For this reason, Petitioners are justifiably alarmed that even the oral administration of food and water without appropriate therapy and a medically directed and supervised transition protocol will endanger the life of their daughter.

7.              One of the purposes of the Guardianship Law is to assist an incapacitated person in meeting the essential requirements for their physical health and safety.  §744.1012, Fla. Stat.  This means taking “those actions necessary to provide ¼ food ¼ and other care without which serious and imminent physical injury or illness is more likely than not to occur.”  §744.102(10)(b), Fla. Stat. 


8.              Thus, the legislature has not authorized the use of the Guardianship Law as a basis to withhold food and other required care, or to cloak a guardian with the authority to do so.  Indeed, this Court is charged with the obligation to enter “any order necessary to protect the ward.”  §744.371, Fla. Stat.

9.              Any right to decline food and water is a privacy right that belongs to the individual.   In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990).  The right to privacy is a “retained right” of an incapacitated person that is not “delegable;” it is not transferred to the guardian under the Guardianship Law and cannot be exercised by the guardian under the color of the Guardianship Law.  §§744.3215, 744.344 (5), Fla. Stat.

10.         The guardian may exercise the delegated rights in such a way as to “recognize” a retained right such as privacy, but in such a case, there must be a previously expressed privacy right to recognize.  See, Glatthar v. Hoequist, 600 So. 2d 1205 (Fla. 5th DCA 1992). 

11.         A delegated right (such as the right to medical consent) cannot be exercised in derogation of a retained constitutional right.  §744.363(6), Fla. Stat.

12.         Finally, the delegated rights must be exercised by the guardian within the guardian’s legal authority under Chapter 744, Florida Statutes.


13.         There is at this time absolutely no evidence in the record, other than the fact that Terri holds Catholic religious beliefs, that Terri would choose to exercise her right of privacy in such a way as to commit suicide by refusing to accept food and water by mouth.

14.         Similarly, Terri has a retained right to receive rehabilitation and be free from discrimination because of her incapacity.  §744.3215, Fla. Stat. 

15.         We know that our daughter does not want to refuse nourishment, refuse rehabilitation or commit suicide.  We know that despite the isolation and neglect visited upon her by Schiavo, Terri has clearly demonstrated to us through her actions an incomparable will to live.

16.         For the court to find otherwise, Schiavo will have to offer clear and convincing evidence before this court that Terri expressed such unlikely desires before her incapacity.  As of this date, the record is devoid of any evidence to support such a finding.

17.         It is clear in the record that Terri can swallow.  Newly discovered evidence shows that she could eat Jell-o.  Nonetheless, it is in Terri’s best interests to transition to food and water under medical direction and supervision.


18.         Schiavo has no authority and should not sign consents or otherwise direct the physicians, therapists and other care givers with respect to Terri’s future nutritional needs.  The exercise of even such delegable rights by the guardian is restricted by the procedures and requirements of the Florida Guardianship Law.  The authority for the guardian to act each year is found in the prior court approved guardianship report.  There is no doubt in this regard:  “The powers of the guardian are limited by the terms of the report.”  §744.369(8), Fla. Stat.

19.         In this case there is no approved guardianship report from which this guardian may draw authority.  Notwithstanding a statutory scheme that mandates the timely filing and expeditious judicial review of guardianship reports, this Court has abrogated its enforcement responsibilities and allowed the guardianship to proceed for years with no approved plan – even in the face of objections.  Thus, the Court has knowingly allowed Schiavo to proceed in a totally ultra vires manner without required court supervision and in derogation of Terri’s rights.

20.         Furthermore, Schiavo has a conflict of interest in that, among other things,[3]/ he is and has been living with a woman that he intends to marry, and together they are expecting their second child.  Schiavo will directly benefit, even financially, by defeating Terri’s right to life and obtaining a death certificate rather than a divorce decree.


21.         Terri has a retained right to a qualified guardian.  §744.3215 (e), Fla. Stat.  “It is essential to the proper conduct and management of a guardianship that the guardian be independent and impartial.”  §744.446, Fla. Stat.

22.         Terri has the retained right to an “annual review of the guardianship plan,” a right that has been defeated by Schiavo.  §744.3215 (a), Fla. Stat. 

23.         Terri has a retained right “to be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation” but Schaivo has defeated this right by neglecting her most basic needs, treating her as a chattel and (through counsel) likening her to a houseplant.  §744.3215 (d), Fla. Stat.

24.         Pending the removal of Schiavo as guardian and through this critical transition from the feeding tube, Terri must be heard and her rights must be represented. 

25.         At “any” hearing under the Florida Guardianship Law, Terri has the right to “testify, present evidence, call witnesses and confront and cross-examine witnesses.”  §744.1095, Fla. Stat.

26.          She has a retained right to counsel.  §744.3215(l), Fla. Stat.


27.         Schiavo is not qualified to act as Terri’s guardian with respect to her delegated rights, has no authority in the absence of an approved guardianship plan and is therefore exceeding his legal authority, has a disqualifying conflict of interest, has acted to defeat Terri’s retained rights,  and should be removed as her guardian.  Because of the exigencies of the circumstances, Terri cannot wait for Schiavo to be removed as her guardian and is in need of an immediate order protecting her rights.  Florida law provides this Court with guidance as to how to deal with this situation.  In Glatthar v. Hoequist, 600 So. 2d 1205 (Fla 5th DCA 1992), the Court was faced with a guardian who wanted to “exercise” rather than “recognize” a retained right, and a conflict of interest on the part of the guardian that no one had challenged.  The court remanded the case with this direction:

The judge should again appoint a guardian ad litem to represent [the ward] to determine whether or not the plenary guardian (Glatthar) has a conflict of interest to such a degree he should be removed as guardian, and an impartial successor appointed in his place.  If no compelling conflict exists, then the court could appoint a court monitor, pursuant to section 744.107 to report to the court and guardian ad litem as to whether or not any exercise of powers pursuant to section 744.441 is advisable and in the ward’s best interest.  The guardian ad litem could be empowered to exercise whatever powers might be required in this regard. 

 

Id. at 1208 (footnote omitted).

 


28.         In this case the guardian has already been challenged, so a report on that issue is unnecessary, but a guardian ad litem is urgently needed to represent Terri’s retained rights and to ensure that her life is not endangered by the withdrawal of the feeding tube.  If the guardian ad litem is not empowered to do so, a qualified guardian of the person (i.e., not Michael Schiavo) should be appointed on a temporary basis (until the removal petition is heard) to direct Terri’s medical care so that the feeding tube is not removed before she has had sufficient help to safely make the transition.  Finally, a court monitor should be appointed to report to the court and the guardian ad litem on matters related to the Petition to Remove Guardian and such other matters as the court deems appropriate.

29.         Information required by Rule 5.900 (a), Florida Probate Rules, is provided in Exhibit A and incorporated by reference herein.  The documents relied upon by Petitioners are attached hereto and incorporated herein by reference.

WHEREFORE Robert and Mary Schindler respectfully request this Court

a.              To enter an order requiring the implementation of a medically directed and supervised plan of transition to ensure the ward’s (“Terri’s”) ability to drink fluids and ingest food without harm,


b.              To delay the removal of the feeding tube until such transition has been effected,

c.              To direct that the guardian refrain from directing any health care provider with respect to the ward until such time as the Petition to Remove Guardian is ruled upon,

d.              To appoint a guardian ad litem and a qualified limited guardian of the person for medical, mental, personal and social care services,

e.              To appoint a court monitor and taking such other action as is necessary to protect the rights of the ward and meet the essential requirements for her physical health and safety,

f.              To shorten the response times in conformance with the expedited times set forth in Probate Rules 5.040, 5.705, and  5.900, and

g.              Such other and further relief as the Court deems necessary in the discharge of its duties under comprehensive Florida’s Guardianship Laws.

 


Verification

 Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief, as provided in § 744.104, Fla. Stat.

 

 _________________________                                                      

Robert Schindler, Sr., Petitioner

STATE OF FLORIDA

COUNTY OF PINELLAS

 

Sworn to and subscribed before me this ___day of September, 2003, by ROBERT SCHINDLER, SR., who is personally known to me and who first took an oath.

 

______________________        

Notary Public

My commission expires:

 

 

 Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief, as provided in § 744.104, Fla. Stat.

__________________________                                                      

Mary Schindler., Petitioner

STATE OF FLORIDA

COUNTY OF PINELLAS

 

Sworn to and subscribed before me this ___day of September, 2003, by MARY SCHINDLER who is personally known to me and who first took an oath.

 

 ____________________________                                                          

Notary Public

My commission expires:


 

CERTIFICATE OF SERVICE

 

I HEREBY CERTIFY that a true copy of the foregoing has been served in accordance with the requirements of Florida Probate Rules 5.040, 5.705, and 5.900 this 10th day of September, 2003, as set forth in the attached Declaration of Service by Formal Notice.

 

 

 

 

_______________________________

 

 

PATRICIA FIELDS ANDERSON, ESQ.

Fla. Bar No. 352871; SPN 00239201

PATRICIA FIELDS ANDERSON, P.A.

447 Third Avenue North, Suite 405

St. Petersburg, FL 33701

(727) 895-6505; Fax (727) 898-4903

Attorneys for Robert & Mary Schindler

 

 



[1]Petitioners do not concede the legality of such an order given Terri’s current condition, nor do they concede that such an order is equitable in light of newly discovered evidence.  These grounds are reserved and are not necessary to the relief requested herein.

[2]This is an act distinct from removing life support.  If the “life support” in this case was a ventilator, apparently Schiavo would be planning to use a pillow to smother Terri.

[3]For this purpose, Petitioners incorporate by reference their Petition to Remove Guardian.