Blogs from October, 2012


Losh v. McKinley 86 So.3d 1150 (Fla. 3d DCA 2012)

When the Florida Guardianship Law (F.S. Chapter 744) was enacted more than three decades ago, its then progressive legislative intent was clearly stated within the statute and still remains in effect today.  The statute unequivocally demands that it is to be liberally applied and construed to ensure that the least restrictive form of guardianship is made available; that viable alternatives to guardianship are considered prior to adjudicate a person incapacitated and that due process protections are to be afforded to every person who may become subject to guardianship and incapacity proceedings within the State of Florida.  In a recent Third District Court of Appeals case, Losh v. McKinley 86 So.3d 1150 (Fla. 3d DCA 2012), these fundamental protections were again upheld as public policy mandates due process for these individuals prior to a trial court’s removal of his or her rights.

In Losh v. McKinley, a 93-year-old widow, Frances Losh, was the subject of an incapacity proceeding filed by her only child, Carlin McKinley, who resided in Washington State.  Interestingly, the court-appointed examining committee was varied in its three separate opinions as to the scope of Mrs. Losh’s alleged incapacity.  In fact, one of the committee members recommended no guardianship whatsoever and specifically found Mrs. Losh to be totally oriented to person, place, and time.  The other two committee members recommended a limited guardianship, but not to the degree or scope that the trial court ultimately found.  In fact, one of these two committee members noted that Mrs. Losh was “alert, fully oriented, very well aware of circumstances and that she has excellent general knowledge”, however, she required assistance with managing her property and gifting.

Mrs. Losh, through counsel, refuted the committee reports and asserted that she was not incapacitated in any respect and cited that the proceeding was brought by her daughter for the sole and self-serving purpose of gaining control of her assets.  At the incapacity hearing, Mrs. Losh testified in detail about her family, personal finances, property, health status, and her prescribed medicines.  Mrs. Losh even provided plausible explanations for some of the initial allegations supporting the incapacity petition such as stating that she didn’t carry insurance on some of her properties since she had “enough money to cover any damage” and that she chose money market accounts over certificates of deposit because of the early withdrawal penalties.

At the conclusion of the hearing, the trial court expressed concern over Mrs. Losh’s “vulnerability to what we call undue influence” and found that there was some evidence that there might be an issue with her ability to handle everything going forward.  The trial court then found that Losh had a diminished capacity to handle her finances and proceeded to remove almost all of her rights even though none of the examining committee reports supported such a finding. Specifically,  the trial court entered an order that determined Mrs. Losh was incapable of exercising all of her rights except her right to vote; to determine her residence; to spend up to $1,500, and to fire her caregivers.

Mrs. Losh appealed this ruling and the appellate court reversed the trial court as it found that the evidence, as well as the findings contained in the trial court’s order determining limited incapacity, was “completely insufficient to justify a finding of incapacity.” The opinion provided small consolidation to the trial court by acknowledging that although the trial court’s actions were well intended, they appeared to be motivated out of concern for Mrs. Losh’s ability to make future decisions relating to her person and property.  The appellate court agreed with Mrs. Losh and determined that these findings were not supported by clear and convincing evidence of Mrs. Losh’s incapacity to justify the removal of her rights, the requisite standard of proof for such proceedings.  Therefore, the appellate court reversed and remanded the case to the trial court with instructions to restore Mrs. Losh to full capacity and to dismiss the guardianship proceeding.

The appellate court specifically stated that the trial court does not have the authority to remove an individual’s rights merely out of concern for his or her future conduct, even if well-intended, as this is an impermissible deprivation of rights. This premise is consistent with the appellate court’s prior ruling In re Maynes v. Turner 746 So. 2d. 564 (Fla. 3d. DCA 1999) which held that “in our present-day paternalistic society we must take care that in our zeal for protecting those who cannot protect themselves, we do not unnecessarily deprive them of some rather precious individual rights.”

Losh v. McKinley is an important case as it re-affirms the “clear and convincing” legal standard of the burden of proof required in all guardianship and incapacity cases, the longstanding legislative intent of the Florida Guardianship Law, and the fundamental right to due process.

If you or a loved one becomes the subject of incapacity or a guardianship proceeding in the State of Florida, please contact the Florida guardianship attorneys at Adrian Philip Thomas, P.A. to discuss how we may be of assistance to you.

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