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Originally Posted by JoeRedskin
A related question: what is the burden of proof someone should have to satisfy in cases where the incapacitated individual's decision is disputed: Mere preponderance? Beyond a reasonable doubt? or something in between?
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It's technically a civil case (one party suing another for monetary damages, custody of a house or children in a divorce case, or legal right to guardianship as is the case here), which needs only a preponderance of the evidence. The very nature of the lawsuit (one on one, you either find for the defendant or for the plaintiff) requires that you go with the preponderance of the evidence. The point to make here is that Michael Schiavo was not legally required to show that his wife's wishes were to die in these circumstances, because by default the spouse is considered the legal guardian and is responsible for making the decision in this case. If Terri had a living will, then the decision would be made, but since there was no living will the decision falls in the hands of the legal guardian. The question isn't what burden of proof is needed regarding her wishes, the question at hand is what burden of proof is needed regarding Michael Schiavo's incapability as legal guardian. The crux of the lawsuit was that Terri's parents had to show that her husband was unfit to be her legal guardian. They wanted to be granted the legal right to be her guardian so that they could make the decision regarding her life.
Now, I'm not arguing what the ethical responsibility is, because that can go either way, and depends on the personal belief system I was rapping about before. I just mean to clarify the legal situation at hand. If you're put into a vegetative state, or if you're being kept alive by life support, and you have no living will, then the decision legally falls into the hands of your spouse. If you don't like that idea, you better get a living will, because the only way to prevent your spouse from being in charge of your life is having someone prove that your spouse is unfit to make that decision.
Whether Michael Schiavo was unfit to make that decision is up to debate, but one thing is for sure, Terri's parents couldn't provide any evidence that he is unfit.
Personally, I don't think anything needs to change with the legal system. It's this simple, if you trust your spouse to make the right decision for you, then you don't need a living will. If you don't trust your spouse, then you need to get a living will.