An Inescapable Conflict of Interest

by JHS, Esq.

I continue to marvel, as I watch the ongoing coverage of the Terri Schiavo debacle and listen to all the folks weighing in with their opinions, at the number of times I hear Michael Schiavo referred to not just as Terri’s “husband,” but as her “devoted,” “loving,” “committed,” and even “faithful” husband.

It boggles my mind, frankly.

It is undisputed that Michael Schiavo moved on with his life after Terri became disabled. He has had at least several relationships with other women and has been living with his current companion, according to Terri’s brother, Bobby Schindler, for 10 years. He has fathered 2 children with that woman.

I’m not suggesting that Michael Schiavo was not free to get on with his life. I think you’d be hard-pressed to find someone who would begrudge him the chance to find love and happiness, and start a family, with someone else. After all, he and Terri were only in their 20’s when she sustained her life-changing injury and whether or not you accept the testimony of the neurologist who claim that she is in a persistent vegetative state (I do not), it is beyond dispute that, even with rehabilitative therapy, she will always be a disabled person.

So had Michael Schiavo divorced Terri, I think few people would have blamed him.

To Rose Wendland’s credit, if she was involved with someone new, she was at least discreet. While Michael and Terri did not have children, Robert and Rose had 3. The youngest, Robby, was just a youngster when Robert was involved in the car accident that left him disabled and his 2 older sisters were teen-agers. Rose was busy, by all accounts, raising the children on her own.

But when the subject of divorce came up during the Wendland case, Rose bristled. She insisted, a la Michael Schiavo, that she was attempting to carry out Robert’s pre-incapacity wishes, even though the California courts found that she did not sustain her burden of establishing that by clear and convincing evidence.

America’s Moral Decline and the Judiciary’s Refusal to Acknowledge It

Like Judge George Greer in Florida, San Joaquin County Superior Court Judge Bob W. McNatt was not interested in my attempts to introduce or elicit evidence that Rose Wendland had conflicts of interest which disqualified her from making decisions about Robert’s medical treatment.

However, as noted above, Rose Wendland’s conflicts pale in comparison to the one glaring conflict of interest that should have been deemed legally sufficient — years ago — by Judge Greer to remove Michael as Terri’s guardian. Michael effectively abandoned his marriage to Terri and the vows he made to her when he began a relationship with another woman.

How anyone can make a straight-faced assertion that Michael Schiavo has been “faithful” to Terri escapes me.

And leaves me pondering just how severely the moral fiber of this country has deteriorated when otherwise rational, intelligent adults can analyze Michael Schiavo’s circumstances and life choices, but still argue that he is Terri’s “husband” and, therefore, entitled to make decisions on her behalf.

Michael Schiavo is Terri’s “husband” only in the very strictest legal sense.

And consider the legal quagmire Judge Greer’s failure to acknowledge Michael’s conflict of interest created for Bob and Mary Schindler, Terri’s loving parents. They petitioned the court, seeking a divorce for Terri, but were blocked.

Why? Because a guardian (in California, the correct term is “conservator”) stands in place and stead of the person who has been adjudicated incompetent to make his/her own decisions. The guardian speaks for the incapacitated individual and is authorized by the court to exercise his/her rights. The guardian’s actions are governed by strict fiduciary duties. In other words, the guardian must be guided by and act at all times in accordance with the best interests of the ward.

Terri Schiavo, were she competent to make her own decisions, would have an absolute right to be divorced from Michael.

But since Michael stands, from a legal perspective, in her shoes and exercises her rights for her on her behalf . . . well, are you seeing the problem? Michael would have to petition the court on behalf of Terri, asking that Terri be divorced from . . . er . . . Michael. That would not be the case had Judge Greer, consistent with his duties, acknowledged and acted upon Michael’s inescapable conflict of interest in this matter by removing him as Terri’s guardian and appointing someone else to serve in that capacity.

Instead, Judge Greer abdicated his duties and responsibilities as the trial court judge when he refused to strip Michael of his status as Terri’s guardian.

I think John Gibson, subbing for Bill O’Reilly on his radio program on Friday, said it best. He noted that if Terri were to experience a miraculous recovery, sit up in her hospital bed and find Michael in her hospital room, along with his two children and their mother, her first questions might well be, in this order, “Who is this woman?” and “Who are these kids?”

Upon learning their identities, her first response would most likely be akin to that of 99.99% of the woman I know: “Get out and take them with you. I want a divorce.” That would certainly be my first reaction and I think any woman who tells you it wouldn’t be hers is being intellectually dishonest.

This is just one of several reasons why, in my opinion, Judge George Greer is not fit to serve as a judge.

And the fact that so many people are willing to overlook Michael Schiavo’s conduct and deem him still fit to bring about Terri Schiavo’s death by dehydration and starvation conclusively, in my opinion, the demonstrates how severely, as a nation, our moral perspective has declined.

Anonymous April 4, 2005 at 3:06 pm

I find your article disingenuous pertaining to Judge McNatt. You leave it unsaid that McNatt ultimately ruled in FAVOR of life and would not allow Robert to be staved to death.
I find such manipulation (by omission) of facts deplorable, especially when it tends to impune another person.

Janie Hickok Siess, Esq. April 4, 2005 at 8:55 pm

Apples and oranges.

YES, Judge McNatt ultimately reached the correct conclusion.

That doesn’t mean that I agreed with every ruling he made along the way. Many, many of his rulings on objections and the admission of evidence were plainly erroneous.

And those aspects of the case remain worthy of discussion, as such discourse might help other families and attorneys in the future. Terri Schiavo’s case will not be the last of its kind. The next one will be worse. Bet on it.

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