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In Florida Guardianship Incapacity Proceedings, there Must be a Physical Examination

Posted March 10, 2019 in PersanteZurowesteFlorida Probate Litigation

In Florida, Guardianship Examining Committee Must Perform Physical Examination on Alleged Incapacitated Person

This blog post explores the Fourth District Court of Appeal's recent opinion in Cook v. Cook, 260 So. 3d 281 (Fla. 4th DCA 2018), on reh'g (Nov. 28, 2018). The rehearing opinion can be viewed here

Because the issues sometimes overlap, probate and trust litigators often handle incapacity proceedings. Sometimes, family members are concerned that their aging relative needs to be protected, and other times families use guardianship proceedings as a strategy to "lock in" a favorable estate plan. It is not always easy to tell. 

Because guardianship proceedings potentially removes constitutional rights of a person, Courts must follow a very specific procedure for evaluating the persons capacity. Those procedures are laid out in Florida Statutes Section 744.331. The statute is long, but for the purpose of this discussion, it is important to focus on the examining committee section:

744.331. Procedures to determine incapacity

(3) Examining committee.--

(e) Each member of the examining committee shall examine the person. Each examining committee member must determine the alleged incapacitated person's ability to exercise those rights specified in s. 744.3215. In addition to the examination, each examining committee member must have access to, and may consider, previous examinations of the person, including, but not limited to, habilitation plans, school records, and psychological and psychosocial reports voluntarily offered for use by the alleged incapacitated person. Each member of the examining committee must file his or her report with the clerk of the court within 15 days after appointment.

(f) The examination of the alleged incapacitated person must include a comprehensive examination, a report of which shall be filed by each examining committee member as part of his or her written report. The comprehensive examination report should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision. The comprehensive examination must include, if indicated:

  1. A physical examination;
  2. A mental health examination; and
  3. A functional assessment.

If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report must explain the reasons for its omission.

(g) Each committee member's written report must include:

  1. To the extent possible, a diagnosis, prognosis, and recommended course of treatment.
  1. An evaluation of the alleged incapacitated person's ability to retain her or his rights, including, without limitation, the rights to marry; vote; contract; manage or dispose of property; have a driver license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.
  1. The results of the comprehensive examination and the committee member's assessment of information provided by the attending or family physician, if any.
  1. A description of any matters with respect to which the person lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the determination that the person lacks that capacity.
  1. The names of all persons present during the time the committee member conducted his or her examination. If a person other than the person who is the subject of the examination supplies answers posed to the alleged incapacitated person, the report must include the response and the name of the person supplying the answer.
  1. The signature of the committee member and the date and time the member conducted his or her examination.

(h) Within 3 days after receipt of each examining committee member's report, the clerk shall serve the report on the petitioner and the attorney for the alleged incapacitated person by electronic mail delivery or United States mail, and, upon service, shall file a certificate of service in the incapacity proceeding. The petitioner and the attorney for the alleged incapacitated person must be served with all reports at least 10 days before the hearing on the petition, unless the reports are not complete, in which case the petitioner and attorney for the alleged incapacitated person may waive the 10 day requirement and consent to the consideration of the report by the court at the adjudicatory hearing. If such service is not timely effectuated, the petitioner or the alleged incapacitated person may move for a continuance of the hearing.

(i) The petitioner and the alleged incapacitated person may object to the introduction into evidence of all or any portion of the examining committee members' reports by filing and serving a written objection on the other party no later than 5 days before the adjudicatory hearing. The objection must state the basis upon which the challenge to admissibility is made. If an objection is timely filed and served, the court shall apply the rules of evidence in determining the reports' admissibility. For good cause shown, the court may extend the time to file and serve the written objection.

While the mental health examination and functional assessment may seem more critical to practitioners about the evaluation of one's capacity, the Fourth DCA made it clear that the statute must be strictly complied with and that a physical examination is necessary. 

In Cook v. Cook, there was a three person examining committee appointed to evaluate the alleged incapacitated person, James Cook. The three committee members, a doctor, psychologist, and lay person. All three members timely filed their report and recommended a plenary guardianship for Mr. Cook. While the committee interviewed Mr. Cook multiple times and conducted a mental examination none of the members conducted a physical examination of the alleged incapacitated person. The Court explained that a physical examination is statutorily required:

Under the statute, the examining committee's role is to assess the abilities of the prospective ward and advise the court. The statute requires that each member of the examining committee examine the prospective ward. § 744.331(3)(e), Fla. Stat. The examination must include a comprehensive examination. Id. at § 744.331(3)(f). “The comprehensive examination report should be an essential element, but not necessarily the only element, used in making *286 a capacity and guardianship decision.” Id. If indicated, the comprehensive examination must include a physical and mental health examination. Id. If a mandatory aspect of the comprehensive examination is not indicated or cannot be accomplished, the committee member must expressly explain the reason for the omission. Id.

 The Court further explained that one member performing a physical examination is sufficient:

The statute does not require three separate comprehensive examinations – rather, the statute requires a comprehensive examination.1 The statute also does not specify who should perform the comprehensive examination. This leads us to conclude that the requisite three parts of the comprehensive examination could be performed by different specialists. We find that the statute is unambiguous, however, in its mandate that: a comprehensive examination be performed; a report of the comprehensive examination shall be filed; and the report should be an “essential element” in making the capacity decision.
Here, none of the members of the examining committee performed a physical examination of Cook; none filed a report of a physical exam of Cook; and none explained the reason for their omission of the requisite physical exam. Not *287 only is the physical examination mandated by the guardianship statute, a physical exam could reveal a physiological reason for Cook's behaviors. Because a person's physical condition can have a profound impact on his mental health, a physical examination should be made in every case unless there is an express finding by the examiner that the exam was not indicated or could not be accomplished for any reason. The committee's failure to include the physical examination in this case means the members reached their capacity determinations and advised the court without considering all of the “essential elements.”
Cook v. Cook, 260 So. 3d 281, 286–87 (Fla. 4th DCA 2018), on reh'g (Nov. 28, 2018)

Accordingly, the Court reversed finding that "It was error for the trial court to find Cook incapacitated in the absence of a comprehensive examination mandated by the statute and it was error for the court to rely on the members of the examining committee where they reached their conclusions without considering all of the statutorily-mandated factors."

So, whether you are the petitioner or respondent, remember to carefully scrutinize the committee reports for to support your position. 

About PersanteZuroweste

At PersanteZuroweste, our lawyers handle the complexities of Florida Probate and Trust Litigation, including challenges to wills and trusts. If you think you need to speak with a probate or trust litigation lawyer in Pinellas County, Florida, please give our firm a call. We can be reached at (727) 796-7666.