IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA
File No. 90-2908GD-003
IN Re: THE GUARDIANSHIP OF
THERESA MARIE SCHIAVO,
ROBERT SCHINDLER, et al.,
PETITION TO REMOVE GUARDIAN
AND TO APPOINT SUCCESSOR GUARDIAN
Petitioners, Robert Schindler, Mary Schindler, Robert Schindler, Jr. and Suzanne Schindler Carr, by and through undersigned counsel, pursuant to Fla. Prob. R. 5.660, hereby petition this Court for its Order removing Michael Schiavo (“Schiavo”) as Guardian of Theresa Marie Schiavo (“Terri” or “the ward”) and appointing one of the ward’s siblings, Robert Schindler, Jr. or Suzanne Schindler Carr, as successor guardian. Any one of the statutory reasons set forth below is sufficient to require removal of this guardian pursuant to § 744.474, Fla. Stat. In support, Petitioners say:
Failure to Discharge His Duties - § 744.474 (2), Fla. Stat.
1. The fundamental duty of the guardian as set forth in Chapter 744, Fla. Stat., is to protect the interests of the ward. From the statement of legislative intent to the detailed provisions concerning the annual plan, Florida law requires that the guardian protect the rights of the ward, provide for her health and safety, properly manage her financial resources and help her regain her abilities to the maximum extent possible. Schiavo has failed in each and every respect.
2. Terri has the right to be treated with dignity and respect and the right to privacy - rights that are retained by her notwithstanding the appointment of a guardian. Fla. Stat. § 744.3215. Despite this obligation, Schiavo affirmed on national television (Connie Chung, CNN, 11/4/02) that he is an adulterer and has had a child by his mistress. He made a mockery of his marriage to Terri, dismissing it as “a portion of my life” and that he “got on with” his affairs while still claiming to be a loving husband to Terri. When his counsel offered on this same show a veritable advertisement for adultery, Schiavo sat quietly by in condoning silence.
3. Fidelity is a key component of the respect and dignity that our society expects one spouse to afford the other; yet, this guardian believes that Terri’s disability releases him of his legal and moral responsibility. Indeed, the sanctity of his marriage, once espoused by Schiavo when it was in his financial interest to do so, is now publicly denigrated in heartless fashion.
4. Having expended almost all of Terri’s money in an attempt to kill/ her rather than rehabilitate her (see below), this self-styled champion of her right to privacy has made clear that he has no regard for, and will not protect, Terri’s rights of privacy, dignity and respect. In addition to the public humiliation for Terri caused by both Schiavo’s nationally-televised statements and his public conduct, Schiavo has further condoned assaults on Terri’s privacy and dignity by his counsel who, in local and national media, has declared that Terri is no better than a house plant.
5. Terri deserves what any woman would want in these circumstances - the right to divorce this adulterer. Yet, Schiavo has failed to request authority from this Court to initiate the obvious petition. See Fla. Stat. § 744.3215(4)(c) (2002). There has been a de facto dissolution of this marriage which, in equity, should eliminate Schiavo’s suitability as Terri’s guardian./ In fact, Schiavo is Terri’s
husband in name only, and it is upon that legal relationship that his right to be her guardian is based.
6. Terri also retains the right to be protected from exploitation, which includes the misuse of guardianship duties. Fla. Stat. §§ 744.3215(d) and 415.102(7). Another aspect of Schiavo’s media activities is that the appearance on the above- referenced national television show was, at least in part, for the purpose of promoting his counsel’s book./ To the extent that Schiavo has received any direct or indirect consideration from Mr. Felos or third parties for this or similar activity, it would constitute a misuse of Schiavo’s guardianship role and an exploitation of the ward. In the absence of such consideration, it nonetheless suggests the appearance of impropriety and is a further affront to the dignity of the ward.
7. Terri has the absolute right to receive necessary services and rehabilitation. Fla. Stat. § 744.3215 (2002). Schiavo has affirmatively prevented Terri from receiving these services from her caregivers. Further, he has confined her to the “death row” of Hospice for over two years while the appeals in this case have
been pending, instead of leaving her in a nursing facility where she would receive the services and rehabilitation required by law./
8. Instead of fulfilling his duty to develop Terri’s abilities, Schiavo has at every turn attempted to increase her incapacity through the denial of basic health and rehabilitative services such as range of motion therapy, other physical therapy, orthopaedic evaluations and treatment, speech therapy, standard diagnostic tests and procedures, gynecological care, dental care, rehabilitation evaluations and cognitive therapy, as testimony in the recent evidentiary hearing revealed.
9. Schiavo has systematically isolated Terri and deprived her of sensory input./ Terri has the absolute right to receive visitors and communicate with others. Fla. Stat. § 744.3215. This right has been unlawfully and cruelly restricted by Schiavo, who has prevented visitors of whom he does not approve from seeing Terri, according to his own capricious and unreviewed bent.
10. He has prevented the flow of non-verbal communication between Terri and her parents and siblings by instructing her caregivers to give no such information about Terri’s behavior to her family.
11. Terri has the right to receive “palliative care” which is the comprehensive management of the physical, psychological, social, spiritual, and existential needs of the patient. Fla. Stat. § 765.102. This right is not limited to those with incurable or progressive illnesses.
12. As is reflected in each annual plan filed by him, Schiavo has made no attempt to provide such comprehensive care.
13. Knowing that Terri wants to get better, and would have always chosen rehabilitation over death, Schiavo consented, on Terri’s behalf, to an experimental medical procedure - the implantation of an electrode in her brain in December, 1990 in San Francisco.
14. However, this was yet another violation of his duties as guardian, because such consent was given by him without the necessary prior approval of the Court. Fla. Stat. § 744.3215(4). Now that it is no longer in Schiavo’s financial interest for Terri to receive treatment that could improve her condition, he is yet again violating his duty as her guardian by (a) ignoring and misrepresenting her wishes regarding potentially helpful treatment and (b) refusing to consent to treatment that could be beneficial to Terri.
15. The guardian is required by law to prepare and present an annual plan. Fla. Stat. § 744.3675. Throughout his tenure as guardian, Schiavo has filed the annual plans late or not at all, and has provided incomplete and inaccurate information. The Court recently signed yet another order permitting postponement of the filing of an annual plan.
16. Schiavo has failed to report, and affirmatively concealed, from this Court information concerning Terri’s awareness of her environment and her attempts at communication. Knowing that the attending physician and others would rely on information supplied by Schiavo as a basis for continuing to state an unchanged diagnosis, Schiavo has intentionally withheld information concerning Terri’s true condition: that she is conscious, aware and can swallow.
17. In a further attempt to conceal the truth from this Court, Schiavo has closely controlled access to Terri’s medical records and caregiver information in an attempt to prevent Petitioners from presenting additional evidence that Terri is conscious and is not receiving the medical and rehabilitative services that she requires and deserves.
18. Schiavo has reported in annual reports that Terri was receiving all medical services recommended by the physicians, but has actually forbidden treatment of any kind.
19. In his annual reports, Schiavo has completely failed to prepare and present any plan for the provision of medical, mental health, and rehabilitative services in the coming year as required by Fla. Stat. § 744.3675 (1)(b)(3, and has
falsely stated that Terri could not benefit from physical therapy and other rehabilitative therapies.
20. The Adult Protective Services Act (Chapter 415 of the Florida Statutes) affords protection to disabled persons from abuse, neglect and exploitation, and Terri is entitled to the protections afforded by this law.
21. “‘Abuse’ means any willful act or threatened act that causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health. Abuse includes acts and omissions.” Fla. Stat. § 415.102(1)(2002). Schiavo’s isolation of Terri and refusal to provide adequate physician attention, rehabilitative services, dental care and other medical services constitutes abuse within the meaning of the Adult Protective Services Act as well as the guardianship statutes. Schiavo has failed to properly supervise the care provided by Hospice as is most recently illustrated by the fact that someone turned the thermostat in her room down to 64 degrees./
22. “Neglect” means the failure to provide care, supervision and services necessary to maintain the physical and mental heath of the vulnerable adult, including, but not limited to, medicine and medical services that a prudent person would consider essential to the well-being of a vulnerable adult. Fla. Stat. §415.102 (15)(2002). It further means the failure to make a reasonable effort to protect a vulnerable adult from the abuse, neglect or exploitation of others. Id. Schiavo has neglected Terri by failing to meet the essential requirements for Terri’s physical health and safety and by failing to develop her abilities and by medically sequestering her. He has scheduled insufficient physician’s attention for Terri who is prone to potentially lethal urinary tract infections. He has provided no speech, cognitive, physical or other rehabilitative therapy and has prevented caregivers from doing so.
23. Schiavo has year after year provided professional medical treatment to Terri that he describes in his annual reports as: “None.”
Abuse of His Powers - Fla. Stat. § 744.474 (2)
24. The failures of Schiavo to discharge his duties as alleged above are not merely acts of omission; they are acts of commission that constitute an abuse of power, as well. Schiavo’s approach to his guardianship role is part of an overall scheme designed to serve solely the interests of Schiavo at Terri’s expense.
25. This scheme of abuse, neglect and exploitation includes the provision of certain care and testimony prior to receipt of a substantial medical malpractice award in early 1993, all of which was designed to cast Schiavo in the role of the loving,
devoted husband who would spare no expense to see to the medical and rehabilitative needs of his wife for a long, full lifetime./
26. After receipt of the award, Schiavo’s conduct includes every attempt to facilitate the death of Terri before the money ran out./
27. Schiavo’s attempts to increase Terri’s disability continue, in that Terri has been isolated, information has been withheld from her loved ones, she has been denied basic health and rehabilitative services, her dental, gynecological, and orthopaedic care have been neglected, and her attending physician’s visits have been reduced to only three a year, if that. The reduction in the attention of a physician, under Schiavo’s direction, is particularly insidious because Terri is prone to urinary tract infections, but no medical precautions are taken to identify such infections at an early stage.
28. Indeed, according to Dr. Gambone, her treating physician, no medical attention is provided for such a dangerous infection unless Terri manages to “convince” the nursing staff to call the doctor, a difficult task for one who has received no rehabilitation to enhance her communicative skills.
29. A guardian may exercise only those rights that have been removed from the ward and delegated to the guardian. Fla. Stat. § 744.361 (1) (2002). Nonetheless, Schiavo has abused his position as guardian by directing her caregivers and physicians to deprive her of rights that are retained by Terri under Fla. Stat. § 744.3215, including the right to receive necessary services, rehabilitation and the companionship of others.
The Wasting, Embezzlement, or Other Mismanagement of the Ward’s Property and the Improper Management of the Ward’s Assets - Fla. Stat. §§ 744.474 (7) and 744.474 (16)
30. The management of the ward’s assets has largely been kept a secret and is protected by seal of this court. Nonetheless, what is revealed in this record is that while exhausting Terri’s money for the purpose of killing her, not one red cent could be found by Schiavo to enhance the quality of her life after receipt of the malpractice award. The use of almost $500,000 of guardianship funds for attorney’s fees and costs and the expenditure of nothing for therapy that would reduce the pain of contractures, enhance Terri’s ability to swallow, or facilitate recovery of basic abilities is the grossest form of asset mismanagement.
31. Schiavo’s decision to hold Terri at Hospice after it was clear that she was not “terminal” within Medicare guidelines was an improper use of the ward’s assets./ Terri’s attending physician, Dr. Victor Gambone, agreed at the evidentiary hearing before this Court in October, 2002, that Terri is not terminal and is not in any sort of crisis.
Development of a Conflict of Interest Between the Ward and the Guardian - §744.474 (11)
32. Serious conflicts of interest have arisen since the appointment of Schiavo as guardian. This guardian is not independent and impartial as required by Fla. Stat. § 744.446 (1), and Schiavo has used his fiduciary relationship to advance his private gain at the expense of Terri’s life. Schiavo admitted in his petition to withhold Terri’s food and hydration, dated May 8, 1998, that he will inherit the Ward’s estate and further admitted the likelihood that he would remarry.
33. This is more than a likelihood now. Schiavo has moved in with his mistress and fathered her baby. The Second District Court of Appeal noted in this case that “there may be occasions when an inheritance could be a reason to question a surrogate’s ability to make an objective decision.” In re Schiavo, 780 So.2d 176, (Fla. 2d DCA 2001)(“Schiavo I”). There is now more than an inheritance at stake: a baby will continue to be denied a legally- recognized father every day that Terri lives.
34. Schiavo has repeatedly claimed that divorce will never be an option for him. This leaves only one option for his life plans: Terri’s death.
35. The conflict of interest arising from the fact that Schiavo will inherit Terri’s estate has not decreased as the guardianship fund has dwindled. There are other valuable assets of the estate, including Terri’s engagement and wedding rings that Schiavo has already appropriated to his own use by making jewelry for himself./
36. Schiavo’s recent involvement in the promotion of his counsel’s book raises Schiavo’s interest in Terri’s image and likeness which he has vigorously sought to preserve for her estate in the guise of protecting her privacy from unwanted intrusion but which may, instead, be groundwork to use her image and likeness for commercial gain after her death.
37. Furthermore, divorce may not be an attractive option for Schiavo, given the likelihood that he would be ordered to pay permanent alimony to help defray the cost of Terri’s care.
38. Testimony given during the October, 2002, evidentiary hearing in this case raises a question concerning the unexplained cause for Terri’s extraordinarily rigid neck, first noted when she presented at the emergency room after her collapse in February, 1990. This, together with a 1991 bone scan report that refers to a history of trauma, creates the need to further investigate the cause of the original injury, her care in the interim, and the effect of these injuries on the current diagnosis and prognosis for recovery.
39. Because Schiavo was alone with Terri at the time of the original injury and has been responsible for her care in the interim and in most cases has been the sole source of information about Terri’s history for her caregivers, there is an obvious and impermissible conflict of interest demonstrated by this failure to investigate these matters.
Guilt of an Offense Prohibited Under Fla. Stat. §§ 435.03 and 744.474 (12)
40. Schiavo’s record residence is a home that, according to his deposition testimony, he owns and lives in with his “girlfriend.” This is the same girlfriend who he admitted is the mother of his baby as discussed on the above-referenced national television program. This conduct is a violation of Fla. Stat. § 798.01, which makes living in open adultery a misdemeanor, and § 798.02, which similarly proscribes lewd and lascivious cohabitation.
41. Lewd and lascivious cohabitation is an offense prohibited under Fla. Stat. § 435.03, and Schiavo’s admissions to the requisite elements of this offense should be found to be guilt that disqualifies him as Terri’s guardian./
42. Furthermore, Schiavo’s abuse, neglect and/or exploitation of Terri, a vulnerable adult, should be found to be conduct prohibited by Fla. Stat. §§ 435.03 and 415.111.
Material Failure to Comply with the Guardianship Report - Fla. Stat. § 744.474(13)
43. The guardian is required by law to implement the guardianship plan. Fla. Stat. § 744.361 (4). As alleged herein, Schiavo has consistently failed to implement the guardianship plans in that he has committed to this court that Terri would receive necessary medical care and services when, in fact, such care and services have not been provided.
44. The most recent annual plan contains promised medical services and evaluations that are to obtained “without undue delay.” Nine months later, these things have not been accomplished.
Failure to Comply with the Rules For Timely Filing Guardianship Reports - Fla. Stat. §744.474 (14)
45. Throughout his tenure as guardian, Schiavo has repeatedly failed to comply with the rules for the timely filing of guardianship reports. Such reports have been either omitted or not filed on a timely basis, requiring the issuance of more than one order to show cause.
Failure to Fulfill the Guardianship Education Requirements - . §744.474 (15)
46. For over a decade, Schiavo flouted the guardian education requirements. His failure to receive the requisite education was an intentional act and did not arise from any ignorance of the requirement. This is further evidence that Schiavo has not taken his obligations to Terri seriously and is unsuitable as a guardian.
After Appointment, the Guardian Has Become a Disqualified Person as Set Forth in Fla. Stat. §§ 744.309 (3) and 744.474 (18)
47. Since his appointment as guardian, Schiavo has become a disqualified person within the meaning of Fla. Stat. § 744.309 (3), as set forth below.
48. Schiavo has demonstrated through repeated and gross failures to comply with the law that he is incapable of discharging the duties of guardian.
49. Schiavo is guilty of offenses prohibited under Fla. Stat. § 435.03.
50. Conflicts of interest exist which prevent Schiavo from being independent and impartial as required by Fla. Stat. § 744.446.
WHEREFORE, Petitioners respectfully request that Michael Schiavo be removed as guardian and that Robert Schindler, Jr., or Suzanne Schindler Carr be appointed guardian of Theresa Marie Schiavo.
___________________________ Respectfully submitted,
MARY SCHINDLER PATRICIA FIELDS ANDERSON, ESQ.
Patricia Fields Anderson, P.A.
___________________________ 447 Third Avenue North; Suite 405
ROBERT SCHINDLER, JR. St. Petersburg, FL 33701
727 / 895-6505; 727 / 898-4903 (fax)
___________________________ SPN 00239201; Fla. Bar No. 352871
SUZANNE SCHINDLER CARR Attorney for Robert & Mary Schindler
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished by Certified Mail, Return Receipt Requested, to:
GEORGE FELOS, ESQ. LARRY CROW, ESQ.
Felos & Felos, P.A. Law Offices of Larry Crow
595 Main Street 1247 South Pinellas Avenue
Dunedin, FL 34698 Tarpon Springs, Florida 34689
DEBORAH A. BUSHNELL, ESQ. GYNETH S. STANLEY, ESQ.
204 Scotland St. 1465 S. Ft. Harrison Avenue, #202
Dunedin, FL 34698 Clearwater FL 33756
PAMELA CAMPBELL, ESQ. ALISON A. CARPENTER
111 Second Ave. NE; Suite 1404 30617 U.S. Highway 19 N., Ste 1101
St. Petersburg, FL 33701 Palm Harbor, FL 34684
and by Hand Delivery to GEORGE FELOS, this 15th day of November, 2002.
PATRICIA FIELDS ANDERSON, ESQ.
Attorney for Respondents
/ “The wilful and voluntary act of destroying the life of another, is an act wrong and unlawful in itself, injurious in the highest degree to the rights of another, being the greatest wrong which can be done to him, contrary to the laws of nature as well as society, and in violation of the plainest dictates of conscience.” Holland v. State, 12 Fla. 117 (Fla. 1867)(explaining role of intent in homicides).
/ “Unless otherwise provided in the advance directive or in an order of dissolution or annulment of marriage, the dissolution or annulment of marriage of the principal revokes the designation of the principal's former spouse as a surrogate.” Fla. Stat. § 765.104(2)(2002). In this court of equity, the same principle should apply to the guardian in this case.
/ See, e.g., George J. Felos, “Spiritual Practice,” 76 Fla. Bar. J. 85 (Nov. 2002).
 The initial move to Hospice was done in violation of the annual plan and without court permission in violation of Fla. Stat. § 744.3215(4).
/ Schiavo, who only visits her periodically, does not permit Terri to have flowers in her room nor snapshots of her family nor does he make any effort to have music played for her.
/ When complained about in writing, the thermostat was re-set and locked at a more suitable temperature, but Petitioners have yet to receive any explanation for the frequent inhumane frigidity in Terri’s room.
/ I believe in the vows that I took with my wife, through sickness, in health, for richer or poorer. I married my wife because I love her and I want to spend the rest of my life with her. I’m going to do that.
Michael Schiavo, trial testimony, Schiavo v. Igel, Case No.92-939-15, Nov. 5, 1992, at pp. 27:14 - 28:3 (emphasis supplied). Schiavo also presented the testimony of Dr. David Baras, chief of rehabilitation at Bayfront Medical Center, and Lawrence Foreman, a rehabilitation specialist, who testified that Terri would have a normal life span and would need extensive and expensive rehabilitation care throughout her life.
/ Q. What did you do or what did you not do?
A. I put a -- after speaking with my doctor, I gave an order not to treat a bladder infection Terry had.
Michael Schiavo, deposition in the pending case, Nov. 19, 1993, at pp. 13-14. Schiavo testified further that he knew an untreated bladder infection might be fatal. In the same deposition, Schiavo testified further about his conversations with his physician:
Q. Was it Doctor Harrison’s suggestion the feeding tube be removed?
A. It wasn’t a suggestion, it was just talk. He just mentioned it.
Q. How did he mention it? What did he say?
A. He was talking about removing the feeding tubes, and I said I couldn’t do that to Terry.
Id. at pp. 33-34 (emphasis supplied).
/ In order to receive federal payment for hospice care, the facility must obtain a certification from the attending physician within two calendar days of initial admission that the patient’s “prognosis is for a life expectancy of 6 months or less if the terminal illness runs its normal course.” 42 C.F.R. § 418.22 (2001)(copy attached).
/ “There is a likelihood in the foreseeable future that Petitioner may remarry.” Petition for Authorization to Discontinue Artificial Life Support, etc., ¶ 14 (May 8, 1998). Given the birth of his child, that likelihood must now be a certainty.
/ Deposition of Michael Schiavo in the pending case, Nov. 19, 1993, at p. 80.
/ “Further, no person . . . 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.” § 744.309(3), Fla. Stat. (2002). Chapter 435 of the Florida Statutes is entitled “Employment Screening,” and one of the disqualifying conditions is lewd and lascivious behavior, per § 798.02, as noted in the text. Fla. Stat. § 435.03(2)(o)(2002). Thus, lewd and lascivious behavior is a disqualification for appointment as a guardian.