Florida Probate Litigation Lawyer Blog
When the mental faculties of a person come into question, the court can be petitioned to implement a guardianship. Courts, generally, view this as a last resort when there is no viable alternative. Guardianships can be limited in their scope or plenary. Part of the guardianship processes is an examination of the alleged incapacitated person by a three-person examining committee. Questions often arise about the rights and duties of the examining committee in the examination of an alleged incapacitated person. Under the Florida guardianship statutes, before depriving an individual of all of his or her civil and legal rights, “the individual must be incapable of exercising his rights at all, whether wisely or otherwise.” Losh v. McKinley, 86 So. 3d 1150, 1153 (Fla. 3d DCA 2012)(quoting McJunkin v. McJunkin, 896 So.2d 962, 963 (Fla. 2d DCA 2005)). Florida Statute Section 744.331(3) outlines the rights and duties of the examining committee in determining incapacity. There are rights related to the examination and report conducted and issued by the examining committee as well as the hearing on the matter.
The examining committee is made up 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.” See Fla. Stat. § 744.331(3)(a).
Florida Statute also controls how the examination of the alleged incapacitated person is to be conducted. “If the attending or family physician is available for consultation, the committee must consult with the physician.” See Fla. Stat. § 733.441(3)(a)(emphasis added). Florida Statute Section 744.3201(2)(e) requires the Petition for Determination of Incapacity “[s]tate the name and address of the alleged incapacitated person’s attending or family physician, if known.” Additionally, Florida Statute Section 744.331 (3)(e) states, “[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 specified in s. 744.3215.” This section also requires that the committee have access to previous examinations of the alleged incapacitated person, however, use of these examinations is discretionary and only occur to the extent documents are voluntarily offered by the incapacitated person. See Fla. Stat. § 744.331(3)(e). The language of the statute mandates access, but this mandate is modified by the optional use of these reports and their voluntary disclosure by the alleged incapacitated person.
Florida Statute Section 744.331 also mandates the elements of the “comprehensive examination” and the report of the alleged incapacitated person. See Fla. Stat. § 744.331(3)(f). The examination must include “(1) A physical examination; (2) A mental health examination; and (3) A functional assessment.” See Fla. Stat. § 744.331(3)(f). The report must state:
(1) [t]o the extent possible, a diagnosis, prognosis, and recommended course of treatment; (2) [a]n 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’s license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment; (3) [t]he results of the comprehensive examination and the committee member’s assessment of information provided by the attending or family physician, if any; (4) [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; and (5) [t]he 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.
The statute is specific on the way the examination of the alleged incapacitated person should be conducted and the requirements of the report regarding the alleged incapacity.
The statute is clear on the requisite composition of the committee. However, the “other person with knowledge or skill” is broad and vague. As long as there is one psychiatrist or physician, the other two members are not required to have medical degrees or certain specialties. Thus, the composition of the committee is discretionary as long as the minimum requirements of the statute are met. Additionally, it is not clear what duties the committee actually owes to the alleged incapacitated person or how thorough the examination or review of the alleged incapacitated person’s history has to be. The one thing the statute sets forth explicit requirements for is the provision of the name of the family physician, if known, and consultation with that physician by the examining committee, if known. Other than that, the scope of the examination and review of records is at the discretion of the committee.
If you or anyone you know is interested in obtaining information about or pursuing a guardianship for an incapacitated person, the experienced lawyers at Chepenik Trushin can help.
