Cook v. Cook, 2018 WL 4520379 (Fla. 4th DCA Sept. 20, 2018, rehearing granted Nov. 28, 2018)
January 31, 2019
The ward in this guardianship case was found to be completely incapacitated, and the trial court imposed a plenary guardianship on him. However, the Fourth District Court of Appeal reversed, finding that the three-person examining committee made their determinations for purposes of their required reports, reporting that a plenary guardianship should be imposed, and without conducting comprehensive examinations of the prospective ward. What does this mean? As a matter of public policy, individual rights and freedoms should not be restricted unless necessary for the safety and protection of your loved one.
What happened in this case? The first member of the examining committee, a medical doctor, interviewed the prospective ward, and a few other individuals. While he reviewed the petition to determine incapacity and the prospective ward’s medical files, he testified that he did not perform either a physical or mental health examination of the prospective ward.
The second examining committee member was a layperson, and while she interviewed him as well as others, and reviewed medical records, she admitted that she could not read the note with which she was provided, from his psychiatrist.
The third member of the examining committee, a psychologist, admitted that he did not conduct either a physical or comprehensive mental health examination of the prospective ward, and further admitted that the MMSE-2 exam that he did conduct was the “briefest of screening instruments for neurocognitive impairment”. The prospective ward’s results here showed that he had no cognitive impairment.
However, the prospective ward testified at the guardianship hearing, and the Fourth District noted that he was not only aware but “understandably anxious” about the proceedings, because he recognized that the prospective outcome would be to take away his rights and freedoms.
In reversing, the Fourth District Court of Appeal looked at Fla. Stat. 744.331, and repeated the fundamental notion that the proceedings for competency of a person must be strictly followed. Florida Statute 744.331(3)(e) and (f) requires that each member of the examining committee must examine the prospective ward, and conduct a comprehensive examination. “The comprehensive examination report should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision.” In re Fey, 624 So. 2d 770, 771 (Fla. 4th DCA 1993). The prospective ward was improperly found incapacitated because of the lack of comprehensive examinations that are statutorily required.
On rehearing, the Fourth District struck the last sentence of the original opinion, wherein the Court had stated that the ward’s status remained “unchanged” pending the re-examination by a new three-person examining committee. The striking of this sentence is consistent with fundamental Florida Guardianship Law and legislative intent, in that the goal is to allow a person to have the least amount of interference and restriction of their civil and legal rights as possible, while still allowing for protection of their physical health, safety, welfare, protection of rights, and management of financial resources. See e.g., Fla. Stat. 744.1012.
Considering guardianship proceedings for a loved one is a serious undertaking and all statutory procedures must be followed. A review of these procedures and other issues can be addressed throughout the process of establishing guardianship. Speaking with an experienced probate and guardianship attorney who can provide you with sound and thorough advice can help with guiding you through this process.