This was a somewhat lengthy opinion from the Third District Court of Appeal, including the dissenting opinion.  The trial court’s decision to, among other things, enjoin a party in a guardianship matter to attach (or even reference) the medical records of the alleged incapacitated person and also enjoin the parties (other than the alleged incapacitated person) from having ex parte communications with the court-appointed examining committee, was subject to review.

After the death of the alleged incapacitated person’s wife, Comprehensive Personal Care Services commenced a trust matter against the alleged incapacitated person (Milton), and his son Mark, regarding an irrevocable trust executed in 2011 by Milton and his late spouse.  Mark responded, and countersued, claiming that his father (who was in his 80s) had been misled and fraudulently induced to transfer funds and assets that were to go into the trust.

In this trust proceeding, Mark issued a subpoena for documents to Milton’s doctors, seeking his medical records, and Milton objected to these subpoenas.  The trial court determined that Milton’s mental state was at issue in the proceeding (based on the inducement and influence claims), and ordered that, after conducting an in camera review of the records, that the medical records could not be produced outside of the trust case.

Mark then hired three experts to render opinions based on the medical records.  Without examining Milton themselves, they rendered their written opinions.

Based on these opinions, Mark sought a determination of incapacity for Milton, pursuant to Chapter 744 (the Guardianship Code).  In support, he thought to utilize the medical records and opinions of the experts, and sought leave of court to submit these as per the orders entered in the trust case.  Milton objected, and then sought to prohibit ex parte communications with the prospective examining committee in the guardianship’s incapacity proceedings.

The trial court in the trust case ordered that Mark could not utilize the records in seeking incapacity, and granted the request to preclude ex parte communications.  The order reiterated the preclusion from dissemination of the medical records, and stated that if a petition were to be filed against Milton, that his medical records could not be attached to, incorporated in, or even referenced in the petition.

This non-final appeal followed.

The Third District Court of Appeal affirmed the trial court.  Chapter 744 of the Florida Statutes sets out the explicit procedures to petition a court for a determination of incapacity.  See §744.3201.  Attachment of medical records is not required. Rather, the petitioner is required to state the factual basis for the belief that the person is incapacitated, and provide the names of persons who also have knowledge of these facts based on personal observation. Within 5 days of the filing of a petition for incapacity, the trial court is to appoint a 3-person examining committee, who is to examine the alleged incapacitated person and then file their report with the court within 15 days of their appointment.  See Fla. Stat. §744.331.  In addition, at least one person on the committee must have knowledge of the type of incapacity alleged in the petition, and if the alleged incapacitated person’s physical is available, the committee is to consult with him or her as well and include in their report their assessment of information from that physician.  Id.  Finally, the committee members must have access to and may consider previous examinations of the alleged incapacitated person. Id.

The appellate court explained that if the legislature had intended for the petitioner to incorporate the medical records and opinions of those who did not examine the alleged incapacitated person, then it would have included this in Fla. Stat. 744.3201 and 744.331.  The court is not to permitted to expand upon the controlling statutes.

The dissenting opinion in this case addressed, among other things, the concern of essentially imposing a premature injunction on an un-filed incapacity matter. The dissent explained that the guardianship code confirms the independent nature of the 3-person committee to render their respective reports.

The court must have sufficient confidence that the examining committee members abide by Chapter 744. This statutory trap for the unwary should be followed in the guardianship arena.  If faced with guardianship matters, it is most prudent to consult with counsel with knowledge of the applicable statutes.