A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence. Before exercising the incompetent's right to forego treatment, the surrogate must satisfy the following conditions:

1. The surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence, and that the evidence of the patient's oral declarations is reliable;
2. The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient; and
3. The surrogate must take care to assure that any limitations or conditions expressed either orally or in the written declaration have been carefully considered and satisfied.

We emphasize, as did the district court, that courts are always open to adjudicate legitimate questions pertaining to the written or oral instructions. First, the surrogate or proxy may choose to present the question to the court for resolution. Second, interested parties may challenge the decision of the proxy or surrogate.
* * * Although a surrogate may rely on oral statements made by the incompetent, while competent, to exercise the incompetent's wishes to forego life-sustaining treatment, the presumption of clear and convincing evidence that attaches to a written declaration does not attach to purely oral declarations. Oral evidence, considered alone, may constitute clear and convincing evidence. However, the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged.

Because the only issue before the court is a determination of the patient's wishes, challenges generally would be limited to that issue. For example, there may be challenges to claims that the declaration was not executed knowingly, willingly, and without undue influence; that the patient had changed his or her mind after executing the declaration; that the declaration was ambiguous; that the conditions or limitations contained in the declaration were not satisfied; that the surrogate or proxy was the one actually designated; and, of course, that there was a reasonable probability that the patient would regain competency. When the only evidence of intent is an oral declaration, the accuracy and reliability of the declarant's oral expression of intent also may be challenged.

[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

Recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition. The issue involves a patient's right of self-determination and does not involve what is thought to be in the patient's best interests.
* * *
We see no reason to qualify that right on the basis of the denomination of a medical procedure as major or minor, ordinary or extraordinary, life-prolonging, life-maintaining, life-sustaining, or otherwise.
* * *
Courts overwhelmingly have held that a person may refuse or remove artificial life-support, whether supplying oxygen by a mechanical respirator or supplying food and water through a feeding tube. We agree and find no significant legal distinction between these artificial means of life-support.

Artificial feeding cannot readily be distinguished from other forms of medical treatment. Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, "[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." A gastrostomy tube (as was used to provide food and water to Nancy Cruzan) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme. By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant. Plaintiffs' contention that the statutory scheme followed by Judge Greer deprived Theresa Schiavo of an impartial trial is accordingly without merit. Defendant is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.

Throughout the proceedings, the parties, represented by able counsel, advanced what they believed to be Theresa Schiavo's intentions concerning artificial life support. In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation. Finally, with respect to presenting the opposing perspective on Theresa Schiavo's wishes, the Court cannot envision more effective advocates than her parents and their able counsel. Plaintiffs have not shown how an additional lawyer appointed by the court could have reduced the risk of erroneous rulings....

[T]he court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests.

This court has received a motion from the Committee on Government Reform of the U.S. House of Representatives. The motion is not filed within any appellate proceeding, nor is it filed with either an original petition or a notice of appeal. This court has jurisdiction only to the extent that the motion may seek a constitutional writ of stay under the "all writs" power given to this court by Article V, § 4(b)(3) of the Florida Constitution.

The motion has been filed using the style of a trial court adversary proceeding within the Guardianship of Theresa Marie Schiavo. The motion essentially asks this court to stay a state court judgment in order to permit a hearing of the Committee. With all due respect to the Committee, it has cited no law that convinces us that it has the power to overrule a state court final judgment or that this court has either the jurisdiction or obligation to stay a final judgment based upon its issuance of a subpoena.

Accordingly, the motion is denied.

ALTENBERND, C.J., and FULMER and WALLACE, JJ., Concur.

Members in both chambers were clearly not familiar with all details of the case. They mispronounced her name. They proclaimed she was not in a vegetative state, even though experts say she is and a court agreed. They claimed she did not receive certain brain scans when she had. They wrongly claimed no judge had even granted a family member removal of a feeding tube.

Discontinuing her "artificial life support" in the form of assisted feeding should not also automatically sentence her to death. Instead, Terri should be permitted to attempt to eat and drink by natural means. Ill people often get well, or at least get better. The opportunity to attempt to feed Terri by natural means may demonstrate Terri is able to swallow and to eat and drink naturally.

In Florida, as in New York, a will is construed to pass all property that the testator owns at death. See § 732.6005(2), Fla. Stat. As set forth above, the testator’s body is not considered property. Therefore, just as in New York, a directive in a will regarding the disposition of a body does not have the same force and effect as do provisions directing the disposition of property. We therefore conclude that a testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body.

To hold otherwise could cause untoward results. Nelson v. Schoonover is an example. There, the wife had resided in Ohio when her will was made but subsequently moved to Kansas with her husband. Obviously, burial in Ohio would have taken her away from her family. A more common occurrence might be the execution of a will during marriage indicating a burial location with the spouse. A subsequent divorce would make following such a direction impractical and not in accordance with the testator’s intent.

Our current society is exceedingly mobile. One might live in several states during a lifetime. A provision made in a will that is not revisited for many years may not reflect the intent of the testator as to the disposition of his or her remains. A direction for the disposition of one's body should not be conclusive when contrary and convincing oral or written evidence of a change in intent is present.

Matt,

I have been following your commentary on the legal aspects of this case and find it informative to a degree, but lately you do not seem to be as focused on the law as you have been in the past, and are letting personal opinion slip through. You have not clearly analyzed the points of law in Greer's latest rulings but just sidestepped with comments like "I am not aware of any Florida law that speaks directly to the issue, so I am not sure that Judge Greer is obligated to rule one way or the other."

This case seems to have several elements of fraud in it, including actions by Felos, who has interests in the hospice, and the doctor who certified her pvs. What real recourse do members of the general public, like me, have to see a criminal investigation opened into this matter, and to possibly have Greer impeached?

I am also interested in whether the DCF could legally take Terri into protective custody to protect her from further abuse.

I apologize if my focus has seemed less legal of late. The truth is that this case takes hours upon hours of time to follow and I work about 60-80 hours per week anyway. Also, the volume of email I've been getting has been astounding, and I try to respond to everyone. That's left less time for blogging about it all.

I hope I haven't appeared to give my personal opinion of what I think Terri would have wanted -- I don't have one.

My comment on not being aware of any controlling law was not an effort to sidestep a point of law in a ruling. It was an effort to help people understand that there is no controlling authority here either way. If you disagree, please send me the citation to a controlling legal decision or controlling statutory authority. I'm very curious about what it is you thought I was sidestepping.

Now, to answer your questions as best I can:

I don't see fraud in this case. Whether an attorney has a connection to a hospice sounds like tabloid fodder. What's the significance? Are you saying that anything would be different in the last few years if Terri had been residing somewhere else, with the same orders in place from the court and the guardian? This sounds like an effort to smear Michael's attorney with no connection to the real issues. If federal monies have been misspent on Terri's care, then appropriate punishments should be meted out, but that has nothing to do with Terri's wishes and whether her feeding tube should remain in place.

As for doctors certifying her as PVS, please understand that the judge has held two trials, heard from numerous experts, and twice found her to be in a persistent vegetative state. People saying she is not in a PVS are simply disagreeing with the results of the trials. In the eyes of the law, Terri is in a persistent vegetative state. The debate was resolved at a trial -- two, actually -- and affirmed on appeal each time.

A criminal investigation? Well, the general public always has the right to ask local police and sheriff's officials to investigate the violation of any laws. I can tell you, though, that folks have been asking for investigations into this case for years. So far as I know, the official conclusion is that there's nothing there. I can't vouch for that conclusion, but I can say that no guardianship case has received more attention from reviewing authorities in the history of this state, if not the country, than this one. I like to think our officials are honest and that if there was something there, we would all know about it by now. I know there are theories that say every official in Florida is conspiring to hide the truth here, but my experience with Florida's officials is that they are noble, hardworking, and honest. If they say there's nothing here, I'm inclined to believe them.

As for DCF taking Terri into protective custody, that would require removing her from the authority of the guardianship court. I'm not aware of that ever having been done before, and while I've never studied the issue in depth, I'm not aware of any existing law that would permit it to be done. It's one thing to say that Mr. Smith may be abusing someone and the executive branch needs to remove that person from his custody to prevent abuse; it's another thing entirely to suggest that the Florida judiciary may be abusing a ward under its supervision and that the executive branch needs to remove the ward from another branch of government's watchful eye. Talk about a constitutional crisis -- you'd have one there.

As for impeachment, you are mistaken. Impeachment is a tool for removing public officials who have lost the public's trust through actions other than their judicial decisions. The route for correcting erroneous judicial decisions is the judicial appellate process.The Schindlers have availed themselves of that process time and again, and thus far the appellate courts have agreed that the law has been correctly followed here. So the trial judge's judicial decisions are not cause for impeachment, and I'm not aware of anything concerning other actions in his life that would merit even disapproval, let alone impeachment. Ultimately, there is a reason impeachment talk persists only at the outer fringes of this saga.

Thanks for your interest and taking the time to write. And by the way, the twenty minutes it took me to respond to your email is twenty less minutes I can devote to the blog. Now imagine responding to 100s of emails.

Do you have the mental power to entertain the possibility that Michael Schiavo choked his wife and caused her to suffer hypoxia long enough to experience an arrythmia necessitating cardioversion by the paramedics? Do you not realize that life-threatening arrythmias may starve the brain of adequate perfusion of cerbral tissue with oxygenated blood, causing brain damage but not immediate death? Do you not have the mental capacity to entertain the idea that the Teresa Shiavo case has been selected as a means to bring about global population reduction?

Do you not realize that the current global population threatens to destabilize and wreak havoc on the environment? Do you not realize that the current global population is not sustainable? That is the truth, and we should all admit it and adopt the two-child Chinese policy globally. Violation of the policy would constitute implied consent to have the third child placed into adoption, and the violator to be sterilized immediately. This would reduce the barbarian act of abortion and would promote glasnost between the rulers and the governed. It's time to wake up, come out of a vegetative state, and smell the global coffee.

Hmmm. "Realities of litigation." It means a lot of things. We have an adversarial system of justice. The way it works is that we pit two sides (or more) against each other, each charged with presenting its best case on the law and the facts to the court and, sometimes, the jury. Decisions are then made based on what's presented, and the decisions bind everyone involved. Ethical lawyers don't lie and don't permit anyone to be defrauded, but they also aren't neutral. They have clients who require advocacy. So if I am Michael's attorney in the malpractice case, there is no way I am going to ask him at a deposition or at trial about whether Terri expressed any desire not to remain in a state like she's in. I would ask privately, but not when the answers are being transcribed. That's something for the other side to talk about, if they choose to do that.

But would the other side ever choose to talk about it? If the doctors' attorneys had asked him about it in deposition, then you and I would not be having this conversation. But they apparently didn't ask, and that's not illogical, because the answer either way was probably never going to come up at trial. Think about it. Imagine you're on a jury in a medical malpractice case. The plaintiff is a woman who's in horrible shape, the defendants are blamed for having caused her injuries by failing to diagnose and treat her properly, and the husband is seeking money to care for her for the rest of her life. How will you react to a defense by the doctors that says we didn't do anything wrong here, sure we treated her but there was no way for us to know she was bulimic, we were treating her for pregnancy problems not eating disorders... You may disagree with the defense and find the doctors liable but you probably won't be mad at them. Now, how will you react if the doctors also defend by saying and by the way this woman's really, really hurt, so hurt that she's never going to recover, and she told him she wouldn't want to live this way, so at some point he's going to let her die and jury you shouldn't give him money for her lifelong care even if we were negligent because there's never going to be any lifelong care... How would you react to that defense? You and your fellow jurors would probably be furious with the doctors for saying such things, and the verdict might reflect that furor with a ridiculous sum of money.

So I can't believe any lawyer representing the doctors would bring the matter up, either. The result: this issue is not coming up at the malpractice trial. I'd be surprised if any lawyer disagreed.

In the end, Michael's testimony that he wanted to care for Terri for her and his whole lives can be viewed in multiple ways. On one hand, it's consistent with someone who believed he wanted to care for his wife to bring her back, but who later lost hope when doctors convinced him they'd done all they could do. Keep in mind, the malpractice lawsuit was filed very early on, as you would expect to happen. Trial didn't happen for years, and Terri received tremendous care, attention, and therapy through 1994 -- read the GAL's report and the court decisions for that chronology. The view she would never recover developed slowly, over time, and the degeneration of her cerebral cortex apparently wasn't seen for years. Perhaps Michael's view of that outlook changed slowly, too. Then again, perhaps he lied then or is lying now. Perhaps he knew she wasn't coming back, or either way he didn't want her to come back -- he just wanted to get through the malpractice trial, collect as much money as possible, and let her go. Perhaps. I don't know. I think people just see here what they want to see.

Let me be clear: I'm not saying I have any idea what was really going on in Michael Schiavo's head. I'm not defending him. I'm reacting to numerous statements being made that "he never mentioned her wishes during that trial so he must have just made it all up after the lawsuit." In my view, people saying that don't understand how litigation works. Whether Terri's wishes came up in that trial has nothing to do with whether Michael's been honest in this case about Terri's wishes.