Ticomaya wrote:Here are some relevant Florida statutes ....
Now we're talking!
One relevant statute you have forgotten is this:
Quote:765.401 The proxy.--
(1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:
(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient's spouse;
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
(d) A parent of the patient;
[(e)-(h) and (2) omitted -- they don't apply to this case, T. ]
(3) Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.
This establishes that
assuming that Terri Schiavo's remarks to her husband were clear and convincing evidence, and given that Terri Schiavo had no judicially appointed guardian at the time of the judgment, Michael Schiavo had the right to decide that life-prolonging prodedures be withheld, and the Schindlers did not. Judge Greer found that the Schiavos' three testimonies, taken together, were clear and convincing evidence.
Of course, this raises the question again whether Debra's "hearsay" attack can be sustained. The statute here is long, and I won't post all of it. I'll start by posting what appears to be the strongest case for a hearsay exception, and move on to the weaker ones when this one is refuted.
Quote:90.804 Hearsay exceptions; declarant unavailable.--
(1) DEFINITION OF UNAVAILABILITY
[Omitted for brevity: nobody can deny that Terri Schiavo was unavailable for testimony, T.]
(2) HEARSAY EXCEPTIONS.--The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:
[(a) and (b) omitted for brevity, T.]
(c) Statement against interest.--A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.
[(d) omitted for brevity, T.]
In my opinion, there is a strong argument for a "statement against interest" exception here. Unless Terri Schiavo believed it true that she wanted life support discontinued, by stating that she did she would have exposed herself to murder. The judge was satisfied that she did make this statement to each of the three Schiavos, hence she did believe it to be true. Needless to say, I will be happy to be corrected by people who offer better sources than I did.
