Incapacity and Guardianship Loopholes

Fifth District Court of Appeals Encourages Legislature to Clarify Statute

The decision of whether and when to petition for incapacity of an elderly relative is challenging and can rarely be accomplished without the assistance of an experienced practitioner. However, even with an experienced attorney the frustration level is high for parties involved in the guardianship process, due in part to the lack of clarity and direction contained in the relevant portions of the law.

The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331(4) which explains the process following the petition to determine incapacity:

“Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion[.]”

The statute also provides that “[e]ach 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 … [citation omitted].”

“Each member of the examining committee must submit a report within 15 days after appointment.” Importantly, the statute provides that if a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.
The Fifth Circuit recently illuminated some of the probate code’s deficiencies in its examination of an incapacity proceeding in Levine v. Levine, –So.2d–, 2009 WL 482260 (Fla. 5th DCA, February 27, 2009), 34 Fla.L.Weekly D452a. Levin was commenced through the filing of an incapacity petition by Dr. Scott Levine seeking guardianship over his father, Norman Levine. Pursuant to the statute detailed above, the probate court appointed a three-member examining committee.

The examining committee members concluded that Mr. Levine was not incapacitated. Thereafter, Bonnie Stimmel, Norman’s daughter, moved to dismiss the incapacity petition pursuant to section 744.331(4), which provides “[i]f a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.” Bound by the language of the statute, the probate court had no choice but to dismiss the petition, and an appeal was filed by Dr. Levine to the Fifth District.

The Court of Appeals took advantage of the opportunity to discuss the problematic statute and made some practical suggestions for overcoming some of the statute’s shortcomings. First, the court of appeals suggests that in order for a petitioner to have the issue of incapacity heard when the report of the examining committee concludes no incapacity but contains material defects, a party should:

“Rather than conducting an evidentiary hearing to test the examining committee’s report, an action that would violate the statute as discussed above, a more appropriate remedy would be for the court, or any interested party, to move to strike the report. If such a motion is granted, the court could then order a re-examination by the existing committee (or committee member) or appoint a new committee (or committee member) and order a re-examination.”

Another issue clarified by the Fifth District was the payment of committee’s fees following their finding of no incapacity. The court noted: “[w]hile section 744.331(7)(a) allows the trial court to award members of the examining committee reasonable fees, subparagraph (c) of that section provides that the cost and attorney’s fees of a dismissed petition are to be assessed against the petitioner only if the court finds the petition to have been filed in bad faith. The court made no such finding here. We recognize that the statute has a gap in determining responsibility for payment of the examining committee fees when a good-faith petition is denied or dismissed. See Ehrlich v. Severson, 985 So. 2d 639, 640 n.1 (Fla. 4th DCA 2008). As did the Ehrlich court, we urge the Legislature to specify who pays the examining committee fees in this circumstance.

I am hopeful that the probate bar and legislature can work together to close these gaps in the code and applaud the Fifth Circuit for their direction and encouragement to do the same.

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