Florida/Georgia Personal Injury & Workers Compensation

...uire that a person receive notice, the purpose of the provision is to inform the person of the proceeding and give the person an opportunity to participate in the proceeding if he or she chooses. For example, a petition to determine incapacity under section 744.331, Florida Statutes (2006), requires notice of the filing of the petition to be served on the incapacitated person, the attorney for the incapacitated person, and all next of kin identified in the petition....

...Appellant argues that the trial court's failure to appoint independent counsel at the onset of these proceedings to represent the Ward constituted error of constitutional proportion, because such failure deprived the Ward of her right to due process and equal protection of the laws and was violative of section 744.331(2)(a) and (b) (Supp. 1990). We agree. Section 744.331(2)(a) provides: The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity....

...objectives through providing, in each case, that form of assistance that least interferes with the legal capacity of a person to act in his own behalf. This act shall be liberally construed to accomplish this purpose. The clear language in sections 744.331(2)(a) and (b) requires that upon the filing of a petition alleging an individual to be incapacitated, it is incumbent upon the trial court to appoint an independent attorney to represent the alleged incapacitated person....

...Osborne at the commencement of the final hearing. It did so only on the attorney's statement that his firm had represented the Ward in the past on other matters. This occurred long past the pleadings and trial preparation stage. We hold that counsel's appointment violated section 744.331(2)(a)....

...evident representation of Vivian Curtis, despite Curtis's argument to the contrary. Vivian Curtis was the original petitioner seeking guardianship of the Ward's person. This was clearly improper under subsection (2)(b). We hold that compliance with section 744.331 and rule 5.550 is mandatory and that the trial court's failure to adhere to these requirements at bar constituted error of fundamental proportions. It follows that we are not persuaded by Vivian Curtis's contention that we should weigh prejudice to the Ward, if any, when reviewing an order appointing a guardian under section 744.331....

...appointment of counsel must be accomplished at the very onset of guardianship proceedings, as opposed to any time before final hearing. The notice filed at bar bears the title "Notice to Alleged Incapacitated Person and Order Fixing Hearing Date. F.S. 744.331(1)," however, it does not comply with the rule....

...qualification before the trial court if she believes that a disqualifying conflict of interest exists. Finally, we turn to the propriety of the court's dismissal of the action without the benefit of the examining committee's report, a requirement of section 744.331(3), Florida Statutes (2000). Section 744.331 contemplates that once a *609 facially sufficient petition to determine incapacity has been filed, the court must ensure that the alleged incapacitated person has an attorney, that an appropriately qualified examining committee promptly examines the person, and that an adjudicatory hearing be set no more than fourteen days after the filing of the report of the examining committee, unless good cause is shown to extend that time. Compliance with the requirements of section 744.331 is mandatory and the trial court's failure to adhere to those requirements constitutes reversible error....

...ORFINGER and SHARP, JJ., concur. NOTES [1] Emily Miller, deceased, was living at the time of Simpson's death. [2] Eisenschenk v. Fowler, 82 So.2d 876 (Fla. 1965), and Forbes v. Burket, 181 So.2d 682 (Fla. 2d DCA 1966), after remand, 208 So.2d 670 (Fla. 2d DCA 1968). [3] § 744.331, Fla....

...inety-four-year-old Louis LeWinter was incapable of fully exercising his rights to manage his property and to consent to medical treatment, §§ 744.3215(3)(d), (f), Fla. Stat. (1991), and appointed a guardian to perform those functions for him. See § 744.331(6), Fla....

...LeWinter then lacked the capacity to perform the functions referred to in the order. [1] Neither of the grounds relied on for the contrary position by the appellee, which is ironically the guardianship of the appellant himself, supports its position. First, the report of the examining committee established under section 744.331(3)(a), which did contain such findings, but which was filed over six weeks before the hearing, [2] was rendered entirely valueless by the admitted fact that Mr....

...evidence, it is not empowered to create that evidence from the whole cloth. It is thus apparent that the order below, with its profound effect upon the appellant's privacy and dignity, is unsupported by the clear and convincing evidence required by section 744.331(6)....

...Sixty days later, on November 14, 1991, the consented-to temporary guardianship came to an end, and, accordingly, the court conducted a second hearing in the case so as to resolve the pending petition to determine incapacity. The committee's report was received in evidence pursuant to section 744.331(3)(c), Florida Statutes (1991), which provides that such report must be filed with the court and that such report "should be an essential element, but not necessarily the only element, used [by the court] in making a capacity and guar...

...ourt bases its entire decision. Nor am I impressed with Louis LeWinter's argument on appeal that the committee report was legally "stale" because a hearing was not held on the report within fourteen days after the filing of the report as required by section 744.331(5)(a), Florida Statutes (1991), "unless good cause is shown." "Good cause" was obviously shown in this case because, at a hearing held within days after the committee report was filed, both Louis LeWinter and his counsel expressly agr...

...NOTES [1] It is not disputed that he was fully capable of exercising each of the other rights referred to in sections 744.3215(2), (3), Fla. Stat. (1991). [2] It is unnecessary to pass upon the ward's alternative claim that reversal is required by the violation of the requirement of section 744.331(5)(a) that the adjudicatory hearing be set and held "no more than 14 days after the filing of the report ......

...rally: (a) The marriage is irretrievably broken. (b) Mental incapacity of one of the parties. However, no dissolution shall be allowed unless the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least 3 years....

...We also note that in the event that a dissolution action is properly authorized by the guardianship court, the issues for resolution by the dissolution court would then be: (1) whether Buford Vaughan has been adjudged incapacitated according to the provisions of section 744.331 for a preceding period of at least three years; [1] and (2) the property rights of the respective parties....

...ow Lane, New Port Richey, Florida. Section 744.3215(3)(b), Florida Statutes, provides that the right “to sue and defend lawsuits ... may be removed from a person by an order determining incapacity.” Fla. Stat. § 744.3215 (3)(b) (2006). Although Section 744.331, Florida Statutes, describes a lengthy administrative procedure for a determination of incapacity, the statute fails to define either “incapacity” or “incompetence.” See Fla. Stat. § 744.331 (2006); McJunkin v....

...Section 744.102(10), Florida Statutes, *664 defines an “incapacitated person” as “a person who has been judicially determined to lack the capacity to manage at least some of the property ... of such person.” Fla. Stat. § 744.102 (10) (2006). Finally, Section 744.331(6), Florida Statutes, permits a court to determine a person’s incapacity only by “clear and convincing evidence.” Fla. Stat. § 744.331 (6) (2006); Poteat v....

...Larry Klein of Klein & Beranek, P.A., West Palm Beach, and Dingwall & Stanley, Fort Lauderdale, for petitioner. Gary S. Maisel of Patterson, Maloney & Gardiner, Fort Lauderdale, for respondents. KOGAN, Justice. John Winder Bryan Jr., declared by the trial court to be incompetent to manage his property pursuant to section 744.331, Florida Statutes (1987), petitions this Court to review the opinion of the Fourth District Court of Appeal affirming that order....

...ssipate or lose his property or inflict harm on himself or others, a verified petition may be filed where the alleged incompetent resides or is found, for a judicial inquiry into the mental or physical condition, or both, of the alleged incompetent. § 744.331, Fla. Stat. (1987). It is clear the statute provides no guidance regarding the proper standard for adjudication of incompetency under section 744.331....

...Based upon that meeting, on May 12, Barfield filed a petition to determine Saadeh’s incapacity, alleging that he had Alzheimer’s dementia, attaching the neurologist’s report. In the petition, Barfield alleged that Saadeh needed a guardian appointed to exercise all delegable rights of the ward. As is required under section 744.331(2)(a), Florida Statutes (2008), the court appointed an attorney, Jacob Noble, to represent the ward....

...efore the actual determination of the issue. In Borden v. Guardianship of Borden-Moore, 818 So.2d 604 (Fla. 5th DCA 2002), the court held that a petition for guardianship could not be dismissed before receiving the report of the examining committee: Section 744.331 contemplates that once a facially sufficient petition to determine incapacity has been filed, the court must ensure that the alleged incapacitated person has an attorney, that an appropriately qualified examining committee promptly examines the person, and that an adjudicatory hearing be set no more than fourteen days after the filing of the report of the examining committee, unless good cause is shown to extend that time. Compliance with the requirements of section 744.331 is mandatory and the trial court’s failure to adhere to those requirements constitutes reversible error. Id. at 608-09 . See § 744.331(4), Fla....

...Burchett, 766 So.2d 387 (Fla. 2d DCA 2000). In Holmes , an ETG was appointed for the ward. Id. at 388 n. 2. The trial court refused to permit an attorney retained by the ward from participating in *249 the incapacity proceedings even though, pursuant to section 744.331(2)(a), the alleged incapacitated person was entitled to substitute his or her own attorney for the one appointed by the court....

...Personal representative's right to sell real property. § 733.6175, Fla. Stat. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate. § 744.106, Fla. Stat. Notice and virtual representation. § 744.331(4), Fla....

...be served on counsel for the alleged incapacitated person, and upon on all next of kin, wherever they are. The petition to determine incapacity must be served with the notice. Committee Notes Rule History 1980 Revision: Implements 1979 amendments to section 744.331, Florida Statutes....

...The committee concluded that, procedurally, notice upon the alleged incapacitated person should occur in the same manner as formal notice in rule 5.040, but the required response under that rule should not be imposed upon the alleged incapacitated person. 1991 Revision: Implements 1989 amendments to sections 744.3201 and 744.331, Florida Statutes, and 1990 technical amendments. Statutory References § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...ot be known at the time of filing the petition for the appointment since petition for appointment will henceforth be filed contemporaneously with the petition to determine incapacity. 1991 Revision: Implements 1989 amendments to sections 744.334 and 744.331(1), Florida Statutes, and 1990 technical amendments. Subdivision (c)(1) deleted because FPR 5.555(d) addresses service on parents. Statutory References § 744.309, Fla. Stat. Who may be appointed guardian of a resident ward. § 744.312, Fla. Stat. Considerations in appointment of guardian. § 744.331, Fla....

...1991 Revision: Changes to conform to 1989 and 1990 revisions to guardianship law. Adds additional documents to be signed by the guardian. Statutory references added. Statutory References § 744.3215, Fla. Stat. Rights of persons determined incapacitated. § 744.331, Fla....

...t. City of Hialeah v. Martinez, 402 So.2d 602, 603, n. 4 (Fla. 3d DCA), pet. for review denied, 411 So.2d 380 (Fla. 1981). [3] It is required that a guardian of the person be appointed when a person is adjudicated mentally or physically incompetent. § 744.331(9), Fla....

...d to acknowledge even the most basic distinction between voluntary and involuntary guardianships. The most basic distinction, of course, involves the competency of the ward. While an involuntary guardianship requires an adjudication of incompetency, section 744.331, Florida Statutes (1985), the voluntary scheme requires an affirmative finding of competency....

...p. In the involuntary guardianship, predicated upon an adjudication of incompetency rendering the ward presumably "incapable of managing his own affairs or of making any gift, contract, or instrument in writing that is binding on him or his estate," section 744.331(8), the guardian "shall take possession of all of the ward's property ..." § 744.377(3)....

...ocess of the appointment of the guardian. In an involuntary guardianship, the ward has to first be adjudicated incompetent after a formal hearing and an examination of the ward by a committee of one responsible citizen and two practicing physicians. § 744.331, Fla. Stat. (1985). "When a person is adjudicated mentally or physically incompetent, a guardian of the person shall be appointed, and a guardian of the property may be appointed." § 744.331(9), Fla....

...mpetent. Appellants are daughters of Mildred Bass Keene, the alleged incompetent. They contend the trial court erred in placing too much emphasis upon the report of the examining committee and in not completing the hearing which was held pursuant to Section 744.331(4), Florida Statutes (1975)....

...On March 18, 1986, Merrett filed a verified petition to determine the competency of her mother, Eunice Nagel, and to restrain Jacob Nagel (Eunice's husband) from removing Eunice from Florida and from disposing of Eunice's funds and properties. The petition met all of the requirements of section 744.331, Florida Statutes (1935)....

...the documents she was signing. The trial court appointed Burchett to represent Holmes in the incapacity and guardianship proceedings. [2] After the court's appointment of Burchett, Holmes filed a written notice of substitution of counsel pursuant to section 744.331(2)(a), Florida Statutes (1999). That statutory provision states, "[t]he alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court." § 744.331(2)(a)....

...Here, by failing to conduct an adjudicatory hearing before finding that Holmes did not have the capacity to contract and retain counsel of her choice, the trial court failed to establish Holmes' incapacity by due process of law. Cf. In re Fey, 624 So.2d 770, 772 (Fla. 4th DCA 1993) (holding compliance with requirements of section 744.331 to be mandatory and failure to adhere to those requirements constituted error of fundamental proportions)....

...ardian of Holmes. That order is not at issue in this proceeding. [3] Holmes and Persse also claim that Burchett cannot be appointed to serve as Holmes' counsel due to Burchett's representation of Lutheran Services Florida in other cases. Pursuant to section 744.331(2)(b), "any attorney representing the alleged incapacitated person may not serve ......

...of Mrs. Poteat for the purpose of handling her affairs in the areas in which the court found her to be incapacitated. Mrs. Poteat appeals, arguing that the proof of her incapacity did not meet the statutory standard of clear and convincing evidence. § 744.331(6), Fla....

PER CURIAM. Appellant, Maria Garcia, appeals from a non-final order finding entitlement to costs and attorney fees, pursuant to section 744.331(7)(c), Florida Statutes (2010)....

...3, shall be implemented. If such petition is filed, distribution, other than for support, shall not be made until ultimate disposition of that petition. It is the wish of this court that the trial court appoint to the examining committee required by section 744.331, Florida Statutes (1981), persons who have not testified for either party in either of these proceedings to assist in such determination, if it is medically feasible to do so....

...al Employers' Liability Act). Couch Const. Co. ex rel. Kimmins Corp., Inc. v. Fla. Dep’t of Transp., 537 So.2d 631, 632 (Fla. 1st DCA 1988). . Florida law provides that upon petition, a court can appoint a guardian of the property for a minor. See § 744.331, Fla....

...vidualized findings of fact contained in the order. Krumholz appealed. Following oral argument, this court entered an order relinquishing jurisdiction for ninety days to permit the trial court judge to make the requisite findings of fact pursuant to section 744.331(6)(c), Florida Statutes (2012), 1 and directing the parties to provide a status report within sixty days....

...ome of the competency determination, we agree with appellant that the procedural statute for determining incapacity does not make the potential ward responsible for examining committee fees where the guardianship petition is dismissed or denied. See § 744.331(7), Fla. Stat. (2007). [1] Reversed. WARNER and POLEN, JJ., concur. NOTES [1] We note that the subject statute formerly provided for examining committee fees to be paid from "the general fund of the county in which the petition was filed." § 744.331(7)(a), Fla....

...to be a "vulnerable adult" in need of protective services. Upon entry of the court's order, Emelia Belford, a professional guardian, [2] petitioned to be appointed plenary guardian for J.D.S. In response to Belford's petition, the court initiated proceedings pursuant to section 744.331, Florida Statutes, to determine the competence of J.D.S....

...It is important to note the difference between a guardian ad litem and a plenary guardian appointed pursuant to Chapter 744. Under section 744.3021, any person interested in the welfare of a minor may be appointed guardian of the minor without the necessity to adjudicate the minor incompetent as set forth in section 744.331....

...Mark Scott, represented by Pamela Keller, filed a petition to determine incapacity and a petition for appointment of an emergency temporary guardian with respect to Ms. Klatth-aar, his aunt. Thereafter, the circuit court entered an order appointing Michael McGarry to represent Ms. Klatthaar pursuant to section 744.331(2)(b), Florida Statutes (2011), and an order appointing a three-member examining committee pursuant to section 744.331(3)(a)....

...Klatthaar’s estate, challenges the circuit court’s amended orders awarding fees and costs. Ms. Yazdzik argues that the circuit court erred in awarding fees and costs and directing said fees and costs to be paid from the estate of Ms. Klatthaar because a guardianship was never established. Because sections 744.108 and 744.331 do not contemplate the pay *484 ment of fees and costs from an alleged incapacitated person where a guardianship is not established, we agree and reverse. As this issue is dispositive, we withhold comment on the other issues raised by Ms. Yazdzik on appeal. I. Discussion Ms. Yazdzik argues that the circuit court committed legal error in its interpretation and application of sections 744.108 and 744.331 when it imposed liability for the payment of attorneys’ fees and costs and examining committee’s fees on the estate of Ms....

...statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed.’ ” Rothman v. Rothman, 93 So.3d 1052, 1054 (Fla. 4th DCA 2012) (quoting In re Keene, 343 So.2d 916, 917 (Fla. 4th DCA 1977)). A. Section 744.331, Procedures to Determine Incapacity Section 744.331(7)(a) entitles the examining committee and the court-appointed attorney for the alleged incapacitated person to reasonable fees once incapacity is determined and a guardian is appointed. See § 744.331(7)(b) (“The fees awarded under paragraph (a) shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state.”); see also § 744.102(9) (defining “guardian” as “a person who has been appointe...

...rt to act on behalf of the ward’s person or property, or both”), 744.102(22) (defining “ward” as “a person for whom a guardian has been appointed”). Furthermore, in the event that the petition for incapacity is dismissed, as it was here, section 744.331(7)(c) controls and provides that “costs and attorney’s fees of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith.” See Ehrlich v....

...committee fees where the guardianship petition is dismissed or denied.”). The circuit court did not find that the petitioner filed the petition in bad faith. As the First, Fourth, and Fifth Districts have noted in prior opinions, there is a gap in section 744.331(7) as to the delegation of responsibility for the payment of fees of the court-appointed attorney and the examining committee when a good faith petition is dismissed. See Faulkner v. Faulkner, 65 So.3d 1167, 1169 (Fla. 1st DCA 2011); Allen, 10 So.3d at 1211 ; Levine v. Levine, 4 So.3d 730, 731 (Fla. 5th DCA 2009); Severson, 985 So.2d at 640 . Though section 744.331(7)(a) specifically entitles court-appointed attorneys and examining committee members to reasonable fees, said fees cannot' be paid by the guardian from the ward’s property pursu *485 ant to section 744.381(7)(b) if a guardian is never appointed....

...Allen, 10 So.3d at 1211 ; Levine, 4 So.3d at 731 ; Severson, 985 So.2d at 640 . However, we see no distinction in the statute for cases where the petition was dismissed due to the death of the alleged incapacitated person prior to a determination of incapacity. See § 744.331(7)(c) (addressing the responsibility of fee payments in situations where a petition is dismissed without further clarification as to the nature of the dismissal). As such, the attorneys and the examining committee are not entitled to fees and costs under section 744.331(7)....

...Based upon a strict reading of the statute, see Rothman, 93 So.3d at 1054 , an attorney is only entitled to fees under section 744.108 in situations where a guardian has been appointed to a ward, see generally Severson, 985 So.2d at 640 (noting that section 744.331(7) is “the procedural statute for determining incapacity”)....

...It is apparent that for reimbursement of fees even to be contemplated under section 744.108, a guardianship must ultimately be established. II. Conclusion In sum, section 744.108 clearly applies only to circumstances where a guardianship has been established. Section 744.331 appears to be the only applicable section to this case as it governs procedures to determine incapacity. As the law currently stands, when a petition is dismissed for any reason, fees and costs may be assessed against the petitioner under section 744.331(7) if the petition was filed in bad faith. See § 744.331(7)(c)....

...Even if the ward’s daughter had been unsuccessful in her petitions, they triggered the trial court to appoint three doctors who were required to meet with the ward and his family physician and caretaker, diagnose him, and evaluate his capacity to manage his financial affairs and make medical decisions. Id. § 744.331(3)(g)1.-6....

...In September 1993, the Judge of Compensation Claims referred Fuqua's case to the circuit court for a determination as to whether a guardian should be appointed to manage Fuqua's affairs. Thereafter, the circuit court issued an order appointing an examining committee of three persons pursuant to section 744.331, Florida Statutes....

...1989), and, therefore, we affirm the lower court's determination of total incapacity. We conclude, however, that the record does not reflect a consideration of any less restrictive alternatives than plenary guardianship, contrary to the requirements of Chapter 744. Under section 744.331(6)(b), Florida Statutes (1993): [i]n any order declaring a person incapacitated the court must find that alternatives to guardianship were considered and that no alternative to guardianship will sufficiently address the problems of the ward....

...court approval prior to exercising the right to marry, but court approval is necessary before 'such a marriage can be given legal effect. OVERVIEW When a person is deemed incapacitated, a guardianship court may remove some of his or her rights. See § 744.331, Fla....

...If the right to enter into a contract has been removed, the right to marry is subject to court approval. . Consequently, a guardianship court may remove an incapacitated person’s right to marry if there is clear and convincing evidence that he or she is incapacitated with respect to that right. Id.; § 744.331(6), Fla....

...Each committee member is required to conduct a comprehensive examination of the person to "determine the alleged incapacitated person's ability to exercise those rights specified in [section] 744.3215,” and each member must submit a written report with his or her findings. § 744.331(3)(e), Fla. Stat. An adjudicatory hearing must then be held, and "the partial or total incapacity of the person must be established by clear and convincing evidence.” § 744.331(5)(c), Fla....

...as hearsay. We agree with *1190 Shen and reverse and remand for further proceedings. In August of 2011, a petition to determine incapacity was filed with regard to Shen. The petition sought plenary guardianship. Pursuant to the guardianship statute, section 744.331, Florida Statutes (2011), an examining committee was appointed and the committee members examined Shen and filed reports....

...“ ‘Proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed.’ ” Rothman v. Rothman, 93 So.3d 1052, 1054 (Fla. 4th DCA 2012) (citation omitted). Section 744.331, Florida Statutes, governs the procedure for determining incapacity....

...tment of the examining committee, the court shall set the date upon which the petition will be heard.... The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process. § 744.331(5)(a), Fla. Stat. (2011). Section 744.331(3)(e), Florida Statutes (2011), provides: Each 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.... Each member of the examining committee must submit a report within 15 days after appointment. Section 744.331(3)(f), Florida Statutes (2011), provides: The examination of the alleged incapacitated person must include a comprehensive examination, a report of which shall be filed by each examining committee member as part of his or her written report....

...It does not escape us that the guardianship statute requires the examining committee members’ reports to be filed with the court, and further provides that the comprehensive examinations “should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision.” § 744.331(3)(e)-(f), Fla....

...e does not reference the court’s consideration of the remainder of the reports, which includes the diagnosis, prognosis, recommended treatment, evaluation of rights, and finding of incapacity and need *1192 for limited or plenary guardianship. See § 744.331(3)(g), Fla....

...The issue in this appeal is whether a petition to determine that the appellant/husband is incapacitated—filed by his soon-to-be-former wife after the appellant commenced a dissolution proceeding, and in which the wife sought to be appointed guardian—may warrant an attorney’s fee award against the wife under section 744.331(7), Florida Statutes (2013)....

...Two weeks later, the wife filed a verified motion to stay or abate the dissolution proceeding for three years pursuant to section 61.052(l)(b), Florida Statutes (2013). 1 The wife alleged that her husband “is incapacitated according to the provisions of F.S. 744.331,” and that she anticipated filing a guardianship petition “shortly” alleging that the husband is incapacitated....

...ianship. The wife then stipulated to the entry of an order dismissing the petition for guardianship. 3 The husband moved for a limited rehearing, requesting the guardianship court to grant the husband’s motion for attorney’s fees and costs under section 744.331(7)(c), based on the wife’s bad faith....

...to allow her husband to continue his occupancy in his condominium unit are so sharply inconsistent with her request to become his guardian that the husband’s motion for fees and costs warranted an evidentiary hearing rather than summary denial. 5 Section 744.331(7), entitled “Fees,” first directs the court to award reasonable fees to the examining committee and any court-appointed attorney in a procedure to determine incapacity. § 744.331(7)(a), Fla....

...tute. . Section 61.052(l)(b) provides that the mental incapacity of a spouse is an alternative basis for dissolution of marriage, provided “the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least 3 years.” ....

...had also refused to give him his keys to his car, since January 2013. . The wife’s stipulation for dismissal of the petition after a review of the unanimous reports of the examining committee members is not preclusive on the question of bad faith. Section 744.331(7)(c) addresses bad faith at the point of the filing of the petition....

...An alleged incapacitated person (AIP) petitions this court for a writ of mandamus requiring the trial court to dismiss a petition to determine his capacity. He argues the trial court must dismiss the petition because two of the three members of a committee appointed to evaluate him have twice found him capacitated. § 744.331(4), Fla....

...The second set of evaluations occurred after he returned from Israel. Two of those committee members, a psychologist and a registered nurse, concluded he is capacitated. The third member, a physician, recommended a limited guardian. The AIP has repeatedly sought dismissal of the guardianship proceedings based on section 744.331(4), which states: 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. Id. (emphasis added). The trial court denied the motion to terminate, finding the statute unconstitutional. 1 The guardianship proceedings are still pending and a conservatorship is ongoing. In his petition, the AIP argues that section 744.331(4) requires the trial court to dismiss the petition if a majority of the examining committee members find the person is not incapacitated. The AIP’s *1054 grandson, the petitioner in the guardianship proceedings, responds that if section 744.331(4) is read literally to require dismissal based solely on two of three examining reports without judicial review, it “would violate not only basic tenets of statutory construction, but also the constitutional tenants [sic] of judicial power, procedural due process, substantive due process, and access to courts.” We agree with the AIP and grant the petition. We have held that section 744.331(4) should be strictly construed....

...e trial court “shall” dismiss the petition. This act is ministerial. We grant the petition for writ of mandamus, and direct the trial court to dismiss the petition. Petition granted. STEVENSON and LEVINE, JJ., concur. . The trial court concluded section 744.331(4) is unconstitutional because "as worded [it] results in abdication of judicial authority to two individuals of the examining committee and removes the right of the court to make the appropriate decisions for the benefit of the Alleg...

...ployees of estate. § 733.901, Fla. Stat. Final discharge. ch. 743, Fla. Stat. Disability of nonage of minors removed. § 744.106, Fla. Stat. Notice. § 744.301, Fla. Stat. Natural guardians. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...§ 733.2123, Fla. Stat. Adjudication before issuance of letters. § 733.705(2), (4), Fla. Stat. Payment of and objection to claims. ch. 743, Fla. Stat. Disability of nonage of minors removed. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...as lucid. We accept the trial court's implied, if not express, resolution of this disputed issue of fact that the DPOA was knowingly and voluntarily given. We now turn to the principal issue in this case, involving the failure to appoint a guardian. Section 744.331 provides that "[w]hen an order is entered which determines that a person is incapable of exercising delegable rights, a guardian must be appointed to exercise those rights." [1] § 744.331(6)(f), Fla....

...Stat. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate. § 733.901, Fla. Stat. Final discharge. § 744.106, Fla. Stat. Notice. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...ard. In this case involving the same involuntary petition to determine competency in which the subject was not found incompetent, any award of fees incurred by counsel appointed to represent the subject must come, if at all, from the petitioner. See § 744.331(7)(c), Fla....

...the settlement agreement because it is void under Florida law and public policy. Specifically, they argue the petitioner cannot voluntarily dismiss his petition without the statutorily required adjudicatory hearing on the brother’s incapacity. See § 744.331(4), Fla....

...s a certain method of proceeding to make that determination, the statute must be strictly followed.’” In re Guardianship of Klatthaar, 129 So. 3d 482, 484 (Fla. 2d DCA 2014) (quoting Rothman v. Rothman, 93 So. 3d 1052, 1054 (Fla. 4th DCA 2012)). Section 744.331, Florida Statutes (2012), provides that when a petition to determine incapacity is filed, a court must appoint an attorney to represent the alleged incapacitated person, and within five days of the petition, the court shall appoint an examining committee of three members to examine the alleged incapacitated person, all of whom are to file their reports with the court. § 744.331(1)–(3), Fla. Stat. A plain reading of the statute indicates that once a petition is filed, the court shall set the matter for hearing within certain time constraints. Id. § 744.331(5)(a). The statute also provides that a court shall dismiss a petition if the examining committee members conclude the person is not incapacitated. Id. § 744.331(4)....

...I do not think that a petition for determination of incapacity may be voluntarily dismissed by a petitioner once the trial court has appointed an examining committee, unless a majority of the examining committee finds that the alleged incapacitated person is not incapacitated. See § 744.331(1)–(3), Fla....

...Dr. Levine and his sister, Bonnie Stimmel, are Mr. Levine's adult children. Dr. Levine filed a petition to determine his father's incapacity. As required by statute, the trial court entered an order appointing a three-member examining committee. See § 744.331, Fla. Stat. (2008). After the examining committee members concluded that Mr. Levine was not incapacitated, Ms. Stimmel 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." The trial court dismissed the petition and Dr....

...ity, trial court was required to dismiss petition to determine incapacity); see also In re Keene, 343 So.2d 916 (Fla. 4th DCA 1977). [1] The trial court also ordered Dr. Levine to pay the examining committee's fees. Ms. Stimmel concedes error. While 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....

...rily an aptitude in dealing with financial matters. If the position of the trial court and the appellee were correct, then the standard applicable to invalidate a revocation would be similar to that required for an adjudication of incompetency under section 744.331, Florida Statutes (1985), without the safeguards contained therein....

...We reject Laurence Graham's claim that he did not receive proper notice, as the letters were provided to Laurence's attorney, and there is no authority for the proposition that any specific form of notice was required. Luke Graham argues in response that this court should interpret section 744.331(6)(b), Florida Statutes (2007), as mandating that "[a] person possessing a health care surrogate has the burden to come forward, present that instrument to the court, and permit the parties and the court to address the issue of the instrument's validity." Section 744.331(6)(b) provides: When an order determines that a person is incapable of exercising delegable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person....

...A guardian must be appointed to exercise the incapacitated person's delegable rights unless the court finds there is an alternative. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person. § 744.331(6)(b), Fla....

...*444 After finding Laurence in contempt, the trial court found that Betty's incapacity was established and appointed Luke Graham as her temporary plenary guardian. Laurence claims the trial court erred in doing so without sufficient evidence of Betty's incapacity pursuant to section 744.331, Florida Statutes....

...Fleming, 352 So.2d 895, 898 (Fla. 1st DCA 1977) (citing Waterman v. Higgins, 28 Fla. 660, 10 So. 97 (1891)). "In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence." § 744.331(5)(c), Fla. Stat. (2007). Further, section 744.331(5)(a), Florida Statutes (2007), states: Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard....

...In LeWinter, the Second District reversed a finding of incapacity and the appointment of a guardian, concluding that there was no competent evidence to support the order. The court found that although the report of the examining committee established under section 744.331(3)(a) contained findings that the ward lacked the capacity to perform the functions that served the basis for the guardianship, it was filed over six weeks before the hearing, and there was evidence that the ward's condition had improved in the meantime....

...4th DCA 2007). The statutes governing the adjudication of incapacity and the appointment of a guardian for an incapacitated person are to be strictly construed. In re Fey, 624 So.2d 770, 772 (Fla. 4th DCA 1993) (holding compliance with the requirements of section 744.331, Florida Statutes, is mandatory and failure to adhere to those requirements constitutes “error of fundamental proportions”). This action was commenced under section 744.331, Florida Statutes (2009), entitled “[procedures to determine incapacity.” The general magistrate issued his Report and Recommendations finding Mr....

...Prob. R. 5.095(h). Upon a finding of incapacity, the court is required to either appoint a guardian or find that there is an alternative to guardianship. If there is an alternative to guardianship, the court is prohibited from appointing a guardian. § 744.331(6)(b), Fla....

...ility, after notice and hearing, upon the recommendation (supported by the opinion of a psychiatrist and the second opinion of a clinical psychologist or another psychiatrist) of the administrator of the facility where the patient has been examined. Section 744.331(3)(a), however, provides that a three-member examining committee must be appointed when a petition for determination of incapacity has been filed, and that no member of the examining committee may be employed by any private or governm...

...2d DCA 1989). Here, clearly, the trial court applied a "best interests" tests rather than a subjective test. However, we conclude that the "substituted judgment" doctrine is not applicable to this case. Since there are Florida statutes (sections 390.001(4), 744.331, 744.3215(4)(e), and 744.3725) which apply to the specific situation involved in this case, there is no need for recourse to the "substituted judgment" doctrine....

...revisions to the new committee note to rule 5.550 in order to correct some of the statutory references. 1. See Fla. R. Jud. Admin. 2.140(e). 2. We have jurisdiction. See art. V, § 2(a), Fla. Const.  The proposed amendments are in response to changes to sections 744.331 and 744.367, Florida Statutes (2016), that were made by sections 1 and 2 of chapter 2017-16, Laws of Florida, which became effective July 1, 2017.3 After considering the Committee’s proposals and the relevant legislation, we amend the Florida Probate Rules as proposed. We amend rule 5.550 (Petition to Determine Incapacity) to add new subdivisions (e) (Reports) and (f) (Adjudicatory Hearing) to address changes made to sections 744.331(3)(e), (3)(h), and (5)(a), Florida Statutes (2016), and the creation of new section 744.331(3)(i), Florida Statutes, by section 1 of chapter 2017-16, Laws of Florida. New subdivisions (e)(1) (Filing), (e)(2) (Service), and (e)(3) (Objections) of rule 5.550 provide the filing, service, and objection requirements for the reports of committee members appointed to examine an alleged incapacitated person. See § 744.331(3)(e), (3)(h), & (3)(i), Fla. Stat. (2017). New subdivision (f) (Adjudicatory Hearing) provides the timing requirements for conducting the adjudicatory hearing on a petition to determine incapacity. See § 744.331(5)(a), Fla....

...-5-  Committee Notes Rule History 1980 Revision - 2016 Revision: [No Change] 2017 Revision: Adopts new subdivisions (e)(1)–(e)(3) to address statutory changes in sections 744.331(3)(e), (3)(h), and (3)(i), Florida Statutes, regarding filing, service, and objections to examining committee members’ reports. Adopts new subdivision (f) to address statutory changes regarding the timing of the adjudicatory hearing in section 744.331(5)(a), Florida Statutes....

...acity hearing. I. Facts In early 2014, Temporary Guardian and his two sisters filed an emergency guardianship petition pursuant to section 744.3201 of the Florida Statutes to determine the capacity of their father, Ward. Pursuant to section 744.331, the trial court appointed a three-person examining committee to assist the trial court in its determination as to whether to appoint a guardian for Ward. Pursuant to section 744.3031, the trial court also appointed Temporary...

...ted information to the independent physician. To better understand why we are reviewing the injunction order under an abuse of discretion standard, we briefly examine the relevant provisions of the two statutes implicated in this case: (i) section 744.331 governing initial determination of incapacity, and (ii) section 744.464 governing restoration proceedings. Upon receipt of a petition to determine incapacity, the trial court is required to appoint a three-person examining committee to determine initially a person’s alleged incapacity. § 744.331(3)(a), Fla....

...examinations of the person, including, but not limited to, habilitation plans, school records, and psychological and psychosocial reports voluntarily offered for use by the alleged incapacitated person . . . . 6 § 744.331(3)(e), Fla. Stat. (2014). (emphasis added) At any time after a ward is declared incapacitated pursuant to section 744.331, any interested person, including the ward, may file a suggestion of capacity to have the trial court restore any rights previously removed....

...rior examination reports of the alleged incapacitated person. No such requirement is contained in the statute governing examinations of a ward conducted upon the filing of a suggestion of capacity. In fact, section 744.464(2) neither incorporates section 744.331’s examination requirements, nor contains any other specific requirements for the independent physician’s examination. Temporary Guardian asserts that we should graft requirements onto section 744.464(2) that the Legisla...

...Verification of documents. § 744.3045, Fla. Stat. Preneed guardian. § 744.3115, Fla. Stat. Advance directives for health care. -6-  § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Who may be appointed guardian of a resident ward. § 744.3115, Fla. Stat. Advance directives for health care. § 744.312, Fla. Stat. Considerations in appointment of guardian. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...The Department of Children and Families (DCF) filed a petition for appointment of a plenary guardian over the person and property of Mr. Foster, an alleged incapacitated person. The trial court appointed counsel for Mr. Foster for the guardianship proceedings pursuant to section 744.331(2)b, Florida Statutes (2020). Appointed counsel attended the hearing on DCF's petition, but Mr. 1 Respondent Susan Foster Melendy filed a response in support of Mr....

...2d DCA 2000) (granting an alleged incapacitated person's petition for writ of certiorari to quash a trial court's denial of her motion for substitution of counsel). After an interested person initiates guardianship proceedings by filing a petition to determine incapacity pursuant to sections 744.3201 and 744.331(1), the trial court is required to appoint an attorney for the alleged incapacitated person. § 744.331(2)b. Section 744.331(2)b provides that "[t]he alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court." An alleged incapacitated person is permitted to substitute counsel until the trial court determines incapacity by clear and convincing evidence....

...y the alleged incapacitated person because the "powers and duties of the 6 emergency temporary guardian must be specifically enumerated by court order." See § 744.3031(1). Respondents acknowledge that section 744.331(2)b permits Mr....

...property of the individual from danger that may result from the person's alleged incapacity if immediate action is not taken. See § 744.3031(1). Among those rights removed from the alleged incapacitated person might be the right to enter into contracts. However, section 744.331(2)b specifically provides that an alleged incapacitated person has the right to substitute appointed counsel with counsel of his or her choice during proceedings to 8 determine incapacity; this right, by logic and practicality, must entail the right to enter into an agreement with the attorney of his choosing.2 Thus, while section 744.3031(1) is broad enough to allow removal of the right to contract generally, section 744.331(2)b effectively prohibits the trial court from removing the alleged incapacitated person's right to contract with an attorney....

...e Guardianship of Bockmuller is misplaced. The wards in these cases were incapacitated persons subject to plenary guardianships. Jacobsen, 262 So. 3d at 239; In re Guardianship of Bockmuller, 602 So. 2d at 609. The right to substitute counsel in section 744.331(2)b only applies to alleged incapacitated persons, not to individuals whose incapacity has been determined by clear and convincing evidence. Unlike the wards in Jacobsen and In re Guardianship of Bockmuller, Mr. Foster was an alleged incapacitated person and, as such, had a statutory right to substitute counsel pursuant to section 744.331(2)b which the trial court is not authorized to remove pursuant to section 744.3031(1). Respondents also suggest that Holmes, 766 So....

...consider in that case whether the general authority given to the trial court pursuant to section 744.3031(1) allows the trial court to prevent an alleged incapacitated person from exercising his or her explicit right to contract with and substitute counsel pursuant to section 744.331(2)b....

...incapacity was merely alleged. 11  As an alleged incapacitated person, Mr. Foster had a right to substitute his court-appointed attorney with the attorney of his choice until the trial court determined his incapacity. See § 744.331(2)b....

...Stat. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate. § 733.901, Fla. Stat. Final discharge. § 744.106, Fla. Stat. Notice. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Stat. Notice of administration; filing of objections. *1184 § 733.2123, Fla. Stat. Adjudication before issuance of letters. § 733.705(2), (4), Fla. Stat. Payment of and objection to claims. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...731.104 Verification of documents. F.S. 731.201 General definitions. F.S. 733.202 Petition. F.S. 733.604(2) Inventory. F.S. 735.103 Petition for family administration. F.S. 735.203 Petition for summary administration. F.S. 744.104 Verification of documents. F.S. 744.331(1) Adjudication of person mentally or physically incompetent; procedure....

...F.S. 733.613 Personal representative’s right to sell real property. F.S. 733.6175 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate. F.S. 744.106 Notice and virtual representation. F.S. 744.331(4) Adjudication of persons mentally or physically incompetent; procedure....

...A copy of the petition and notice of the hearing shall be served on one or more members of the family of the alleged incompetent, if any other than petitioner are known to be residing in the county, and to such other persons as the court may direct. Committee Notes Rule History 1980 Revision: Implements 1979 amendments to F.S. 744.331. 1984 Revision: Change in title of rule. Editorial changes and adds a provision for service of petition. Committee notes revised. 1988 Revision: Committee notes revised. Citation form changes in committee notes. *553 Statutory Reference F.S. 744.331 Adjudication of persons mentally or physically incompetent; procedure....

...731.104 Verification of documents. F.S. 731.201 General definitions. F.S. 733.202 Petition. F.S. 733.604(2) Inventory. F.S. 735.103 Petition for family administration. F.S. 735.203 Petition for summary administration. F.S. 744.104 Verification of documents. F.S. 744.331(1) Adjudication of person mentally or physically incompetent; procedure....

...F.S. 733.613 Personal representative’s right to sell real property. F.S. 733.6175 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate. F.S. 744.106 Notice and virtual representation. F.S. 744.331(4) Adjudication of persons mentally or physically incompetent; procedure....

...are known to be residing in the county, and to such other persons as the court may direct. Proposed Rule RULE 5.550. PETITION TO DETERMINE COMPETENCY [NO CHANGE RECOMMENDED] Committee Notes Rule History 1980 Revision: Implements 1979 amendments to P.S. 744.331. 1984 Revision: Change in title of rule. Editorial changes and adds a provision for service of petition. Committee notes revised. 1988 Revision: Committee notes revised. Citation form changes in committee notes. Statutory Reference P.S. 744.331 Adjudication of persons mentally or physically incompetent; procedure....

...Proceedings for review of employment of agents and compensation of personal representatives and employees of estate. § 733.901, Fla. Stat. Distribution; final discharge. § 744.106, Fla. Stat. Notice. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Notice of administration; filing of objections and claims. § 733.2123, Fla. Stat. Adjudication before issuance of letters. § 733.604(2), Fla. Stat. Inventory. § 733.705(2), (3), Fla. Stat. Payment of and objection to claims. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...ot be known at the time of filing the petition for the appointment since petition for appointment will henceforth be filed contemporaneously with the petition to determine incapacity. 1991 Revision: Implements 1989 amendments to sections 744.334 and 744.331(1), Florida Statutes, and 1990 technical amendments....

...2000 Revision: Deletes requirement in subdivision (a) to report social security number of proposed guardian. Statutory References § 744.309, Fla. Stat. Who may be appointed guardian of a resident ward. § 744.312, Fla. Stat. Considerations in appointment of guardian. § 744.331, Fla....

...Distribution; final discharge. 5⅛4 735.103, Fla.Stat. Petition for family administration. 735.203, Fla.Stat. Petition for summary administration. 744.104, Fla.Stat. Verification of documents. § 744.3201, Fla.Stat. Petition to determine incapacity. 744.331(1) Adjudication of person mentally or physically- incompetent; procedure^ Fla.Stat....

...Proceedings for review of employment of agents and compensation of personal representatives and employees of estate. § 733.901, Fla.Stat. Distribution; final discharge. § 744.106, Fla.Stat. Notice and virtual representation. § 744,3201, Fla.Stat. Petition to determine incapacity. § 744.331(4), Fla.Stat....

...Notice of administration; filing of objections and claims. § 733.2123, Fla.Stat. Adjudication before issuance of letters. ⅛⅜⅛ 733.604(2), Fla.Stat. Inventory. § 733.705(2), (3), Fla.Stat. Payment of and objection to claims. § 744.3201, Fla.Stat. Petition to determine incapacity. *1318 § 744.331, Fla.Stat....

...The allegations of the petition are deemed denied. (3) Service on Others. A copy of the petition and the notice shall also be served on counsel for the alleged incapacitated person, and on all next of kin. Committee Notes Rule History 1980 Revision: Implements 1979 amendments to section 744.331, Florida Statutes....

...The committee concluded that, procedurally, notice upon the alleged incapacitated person should occur in the same manner as formal notice in Rrule 5.040, but the required response under that rule should not be imposed upon the alleged incapacitated person. 1991 Revision: Implements 1989 amendments to sections 744.3201 and 744.331, Florida Statutes, and 1990 technical amendments. 1992 Revision: Citation form changes in committee notes. Statutory References § 744.3201, Fla.Stat. Petition to determine incapacity. § 744.331, Fla.Stat....

...ot be known at the time of filing the petition for the appointment since petition for appointment will henceforth be filed contemporaneously with the petition to determine incapacity. 1991 Revision: Implements 1989 amendments to sections 744.334 and 744.331(1), Florida Statutes, and 1990 technical amendments....

...Subdivision (c)(1) deleted because FPRrule 5.555(d) addresses service on parents. 1992 Revision: Citation form changes in committee notes. Statutory References § 744.309, Fla.Stat. Who may be appointed guardian of a resident ward. § 744.312, Fla.Stat. Considerations in appointment of guardian. § 744.331, Fla.Stat....

...provided by law, and that an order be entered determining the mental and physical capacity of said person.” The petitioners sought a plenary guardianship for Cook. The guardianship court issued an order appointing a three-member examining committee pursuant to section 744.331(3)(a), Florida Statutes (2017)....

...son are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed.” In re Keene, 343 So. 2d 916, 917 (Fla. 4th DCA 1977). The relevant statute is section 744.331, Florida Statutes (2017). In 1989, the Legislature considered the state of guardianship law in Florida and the impact a guardianship had on the ward....

...-4-  Under the statute, the examining committee’s role is to assess the abilities of the prospective ward and advise the court. The statute requires that each member of the examining committee examine the prospective ward. § 744.331(3)(e), Fla. Stat. The examination must include a comprehensive examination. Id. at § 744.331(3)(f)....

...A functional assessment. If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report must explain the reasons for its omission. Id. We find that the plain language of section 744.331 requires, at a minimum: (1) An examination by each member of the committee; (2) That the examination must include a comprehensive examination; and (3) That the comprehensive examination must include, if indi...

...Frohman, 901 So. 2d 830, 833 (Fla. 2005) (“If a statutory term is not defined, its plain and ordinary meaning generally can be ascertained by reference to a dictionary.”). There are multiple problems with the analysis used by the majority. Section 744.331(3)(a), Florida Statutes (2017), governing the composition of examining committees provides that: One member must be a psychiatrist or other physician....

...It would be unreasonable to believe the legislature intended for a social worker or “other person” to perform a physical examination or mental health examination as defined by a medical dictionary. -9-  Additionally, in analyzing the requirements of section 744.331(3)(f), Florida Statutes (2017), the majority ignores other subsections of section 744.331(3). For example, section 744.331(3)(c) provides that: (c) Each person appointed to an examining committee must file an affidavit with the court stating that he or she has completed the required courses or will do so no later than 4 months after his or her initial appointment. Each year, the chief judge of the circuit must prepare a list of persons qualified to be members of an examining committee. § 744.331(3)(c), Fla. Stat. (2017) (emphasis added). Likewise, the majority ignores section 744.331(3)(d), which provides that: (d) A member of an examining committee must complete a minimum of 4 hours of initial training....

...essional Guardians, in consultation with the Florida Conference of Circuit Court Judges; the Elder Law and the Real Property, Probate and Trust Law sections of The Florida Bar; and the Florida State Guardianship Association. § 744.331(3)(d), Fla....

...I suppose that one could conclude that all three members missed the mark if one assumes that the legislature intended “a physical examination” or “a mental health examination” as referring to concepts in a medical dictionary, rather than an ordinary dictionary. I find section 744.331(3)(f) ambiguous....

...A mental health examination; and 3. A functional assessment. If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report must explain the reasons for its omission. §§ 744.331(3)(e) and (f), Fla....

...§ 733.901, Fla. Stat. Final discharge. § 735.203, Fla. Stat. Petition for summary administration. § 744.104, Fla. Stat. Verification of documents. § 744.3085, Fla. Stat. Guardian advocates. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Adjudication before issuance of letters. § 733.705(2), (4), Fla. Stat. Payment of and objection to claims. ch. 743, Fla. Stat. Disability of nonage of minors removed. § 744.3085, Fla. Stat. Guardian advocates. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Bent petitioned to have Ms. Searle deemed incapacitated due to her poor physical and mental health and because of a concern Ms. Searle was being exploited by her caretakers. During the proceedings, Ms. Bent filed a “Verified Statement by Interested Person Pursuant to F.S. § 744.331(6)®.” In that affidavit, she alleged that her mother’s durable power of attorney and various estate planning documents executed after December 3, 2006, were invalid because of Ms....

...Bent’s verified statement instead of considering less restrictive alternatives to guardianship as required by statute. She claims the trial court’s actions violated her right to due process by “effectively invalidating her entire estate plan” based solely on the filing of an affidavit. Section 744.331, Florida Statutes (2010), sets forth the procedure for determining incapacity and for the appointment of a guardian....

...emed to be an alternative to the appointment of a guardian. The appointment of a guardian does not limit the court’s power to determine that certain authority granted by a durable power of attorney is to remain exercisable by the attorney in fact. § 744.331(6)(b),(f), Fla....

...Auld, 450 So.2d 217, 219 (Fla.1984)). We conclude that, by relying on Ms. Bent’s verified statement to determine there were no alternatives to guardianship that would adequately protect Ms. Searle’s interests and welfare, the trial court complied with the plain language of section 744.331(6)(f)....

...Thus, under the statute, the trial court was prohibited from considering the documents as an alternative to guardianship. We disagree with Ms. Searle’s contention that the trial court’s reliance on the verified statement “effectively invalidated her entire estate plan.” There is nothing in section 744.331(6)(f) that invalidates the challenged documents....

Stat. Petition to determine incapacity. § 744.331, Fla, Stat. Procedures to determine incapacity

...e members of the family of the alleged incompetent, if any other than petitioner are known to be residing in the county, and to such other persons as the court may direct. Committee Notes Rule History 1980 Revision: Implements 1979 amendments to FGL 744.331. 1984 Revision: Change in title of rule. Editorial changes and adds a provision for service of petition. ■ Committee notes revised. Statutory Reference F.S. 744.331 Adjudication of persons mentally or physically incompetent; procedure....

Fla. Stat. Petition to determine incapacity. § 744.331, Fla. Stat. Procedures to determine incapacity

Bass, challenges the constitutionality of section 744.331, Florida Statutes (1997), which allows Hillsborough

appoint a guardian for Mathes. Pursuant to section 744.331(3), Florida Statutes (1997), the trial court

...The central issue on this appeal is whether the trial court, having adjudicated Anthony C. Sepe physically incompetent, erred in failing to appoint a guardian of the person. The appellant, the only child of the 87-year-old Mr. Sepe, urges that such an appointment is mandatory. We agree. Section 744.331(9), Florida Statutes (1981), provides: “When a person is adjudicated mentally or physically incompetent, a guardian of the person shall be appointed, and a guardian of the property may be appointed.” (emphasis supplied). Were the legislative intent not already clear from the juxtaposition of the mandatory “shall” and the permissive “may” in the statute, any doubt about its intent is set to rest when we note that the language of the predecessor statute, Section 744.331(9), Florida Statutes (1975), provided for permissive appointment only: “After adjudication of incompetency, a guardian of either the person or the property, or both, of the person [sic] may be appointed.” The appellee argues, howe...

...is incompetent, it shall appoint a guardian of the person or of the property, or both, as it may deem necessary.” While the appellee is correct in his conclusion that Section 744.344 makes the appointment discretionary, the conflict between the mandatory language of Section 744.331(9) and the discretionary language of Section 744.344 must be resolved by giving precedence to Section 744.331(9). This is so because Section 744.331(9) in its present form was enacted in 1977, see Ch....

...State, 157 Fla. 685 , 27 So.2d 276 (1946);. Cable-Vision, Inc. v. Freeman, 324 So.2d 149 (Fla. 3d DCA 1975). Accordingly, we hold that the trial court erred in failing to appoint a guardian of the person of Mr. Sepe in accordance with the dictates of Section 744.331(9), Florida Statutes (1981)....

trial court’s finding of incompetency under section 744.-331, Florida Statutes (1985). We affirm. This

declared incompetent was filed pursuant to Section 744.-331, Florida Statutes (1987). Pending determination

...the clerk of the court within 15 days after appointment. (2)-(3) [No Change] (f) [No Change] Committee Notes Rule History 1980 Revision - 2024 Revision: [No Change] 2024 Revision: Subdivision (b)(2) amended to conform to section 744.331(1), Florida Statutes....

specifically assessed fees against Wife under section 744.331(7), Florida Statutes, after finding that Wife

...Capacity; appointment of guardian advocate. § 744.102(4), (9), (11), (14), (22) Fla. Stat. Definitions. § 744.3085, Fla. Stat. Guardian advocates. § 744.309, Fla. Stat. Who may be appointed guardian of a resident ward. § 744.3125, Fla. Stat. Application for appointment. § 744.331(1), Fla....

...law, and that an order be entered determining the mental and physical capacity of said person." The petitioners sought a plenary guardianship for Cook. The guardianship court issued an order appointing a three-member examining committee pursuant to section 744.331(3)(a), Florida Statutes (2017)....

...rson are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed." In re Keene , 343 So.2d 916 , 917 (Fla. 4th DCA 1977). The relevant statute is section 744.331, Florida Statutes (2017)....

...The Legislature's findings support a strict construction of the guardianship statute. Under the statute, the examining committee's role is to assess the abilities of the prospective ward and advise the court. The statute requires that each member of the examining committee examine the prospective ward. § 744.331(3)(e), Fla. Stat. The examination must include a comprehensive examination . Id. at § 744.331(3)(f)....

...A mental health examination; and 3. A functional assessment. If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report must explain the reasons for its omission. Id. We find that the plain language of section 744.331 requires, at a minimum: (1) An examination by each member of the committee; (2) That the examination must include a comprehensive examination; and (3) That the comprehensive examination must include, if indicated, a physical exam, a mental health exam, and a functional assessment....

...law, and that an order be entered determining the mental and physical capacity of said person." The petitioners sought a plenary guardianship for Cook. The guardianship court issued an order appointing a three-member examining committee pursuant to section 744.331(3)(a), Florida Statutes (2017)....

...rson are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed." In re Keene , 343 So.2d 916 , 917 (Fla. 4th DCA 1977). The relevant statute is section 744.331, Florida Statutes (2017)....

...The Legislature's findings support a strict construction of the guardianship statute. Under the statute, the examining committee's role is to assess the abilities of the prospective ward and advise the court. The statute requires that each member of the examining committee examine the prospective ward. § 744.331(3)(e), Fla. Stat. The examination must include a comprehensive examination . Id. at § 744.331(3)(f)....

...A mental health examination; and 3. A functional assessment. If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report must explain the reasons for its omission. Id. We find that the plain language of section 744.331 requires, at a minimum: (1) An examination by each member of the committee; (2) That the examination must include a comprehensive examination; and (3) That the comprehensive examination must include, if indicated, a physical exam, a mental health exam, and a functional assessment....

basis for any determination-of incapacity. Section 744.331 sets forth the statutory procedures for determining

...The circuit court’s standard order of December 10, 2015 (served by mail the following day), scheduled the adjudicatory hearing on the petition for January 13, 2016. But on January 6, 2016, counsel for all of the interested persons and for 4 § 744.331, Fla....

...The hearing was non-evidentiary, and the thrust of the movants’ objections were (a) the alleged failure of court-appointed counsel to read the petition and form notice to M.S., and (b) the fact that the examining committee members did not file their reports within the fifteen day period allowed by the form notice and section 744.331(3)(e), Florida Statutes (2016)....

...counsel, the normal urgency in guardianship cases apparently diminished, because all counsel stipulated to the continuance of the originally-set evidentiary hearing. In light of this unusual record, M.S.’s reliance on strict adherence to the time and notice requirements in section 744.331(3)(e) and in the circuit court’s standard notice and order mailed December 11, 2015, is not persuasive; M.S.’s own counsel and his family could have immediately asked the Court (but did not) to defer the examining committee member assessments, or to expedite them....

...later that substantial compliance with the statute and rule were insufficient, citing such cases as In re Fey, 624 So. 2d 770 (Fla. 4th DCA 1993), and Borden v. Guardianship of Borden-Moore, 8181 So. 2d 604 (Fla. 5th DCA 2002). Although In re Fey holds that “compliance with section 744.331 and rule 5.550 is mandatory,” 624 So....

...In doing so, that court also found that the trial court should not have dismissed the facially sufficient petition without considering examining committee reports and conducting an adjudicatory hearing. These were the flagrant departures from the mandatory requirements of section 744.331 in Borden....

...Turning next to the examining committee reports, apparently the appellees and the dissent would allow dismissal of a petition without leave to amend if a single examining committee report was filed a single day after the 15-day period allowed in section 744.331 (3)(e)....

...No case has held that missing the 15- day period by a few days warrants dismissal of the petition without leave to amend. The dissent’s quotations from Fey and Borden have already been addressed in this opinion—a broadly-written statement in Borden that “[c]ompliance with the requirements of section 744.331 is mandatory and the trial court’s failure to adhere to those requirements constitutes reversible error,” 818 So....

...d petition. Similarly, the dissent’s citation to Adelman v. Elfenbein, 174 So. 3d 516, 518 (Fla. 4th DCA 2012), for propositions that the guardianship statutes must be strictly construed and that failure to adhere to the requirements of section 744.331 constitutes fundamental error, must also be considered against the record in that case....

...the probate court correctly dismissed the guardianship petition without prejudice for the filing of a new petition. THE NOTICE REQUIREMENTS With regard to notice to the alleged incapacitated person after a petition to determine incapacity is filed, section 744.331, Florida Statutes (2015), provides: (1) NOTICE OF PETITION TO DETERMINE INCAPACITY.—Notice of the filing of a petition to determine incapacity and a petition for the appointment of a gua...

...Valdes completely ignored her duties as the Elisor and the directives of the probate court’s Notice and Order, as well as 14The fifteen-day deadline was extended to December 28, 2015, due to the Christmas holiday. 26 Florida Probate Rule 5.550(b)(2) and section 744.331(1)....

...Valdes with privately retained counsel to represent M.S. as his attorney, M.S. never sought, and the probate court has never granted, a motion to discharge Ms. Valdes as the Elisor. THE EXAMINING COMMITTEE REQUIREMENTS As with the notice provisions already addressed, section 744.331(3)(e) is written in mandatory language and states that “[e]ach member of the examining committee must submit a report within 15 days after appointment.” Additionally, the Notice and Order places a similar requirement on each member of the examining committee: At least five (5) days before the hearing, or within fifteen (15) days of the date of this Order, whichever is earlier, a written report that confirms [sic] to the requirements of section 744.331, Florida Statutes, must be filed with the Clerk of this Court with copies sent to [M.S.], the Petitioner, and all attorneys of record. Again, it is undisputed that none of the committee member’s reports were filed within the fifteen days mandated by the probate court’s Notice and Order and section 744.331(3)(e). 27  M.S.’S OBJECTIONS TO THESE PROCEDURAL DEFECTS The record reflects that M.S....

...to notify him of the 29 proceedings or to meet with M.S. prior to the filing of her objection to the retention and substitution of private counsel selected by M.S.; and the failure of the examining committee members to file their reports within the time prescribed by section 744.331(3)(e) and the probate court’s Notice and Order. The amended motion to dismiss argued that these requirements are mandatory, and therefore, the failure of the Elisor, appointed counsel, and the examining committee members...

...The Court entered an Order on January 7, 2016 authorizing the retention of private counsel and discharging the Court-Appointed Counsel. 9. [M.S.] is entitled to proper notice under Florida law and the Florida Probate Rules, as are consistent with due process and [M.S.’s] fundamental Constitutional rights. §744.331(1), Fla. Stat. (2015); §744.33l(5)(a), Fla. Stat. (2015); In re Fey, 624 So.2d 770, 771-72 (Fla. 4th DCA 1993) (finding that failure to follow the “very specific procedures” outlined in §744.331 of the Florida Statutes created a violation of the alleged incapacitated person’s due process and equal protection of the laws); Fla....

...The examining committee members had 15 days from appointment to examine [M.S.] and submit their individual reports with the Court. “Each member of the examining committee must submit a report within 15 days after appointment.” §744.331(3)(e), Fla....

...The report of Dr. Picuric was first received by the Court on January 13, 2016, a date still beyond any timeframe permissible in this proceeding. 18. Because the examining committee reports are all untimely, the procedural requirements of §744.331 of the Florida Statutes (2015) have not been met and the Petition should be dismissed. The amended motion to dismiss the petition to determine incapacity argued that the failure to comply with section 744.331 constituted fundamental error and provided the relevant statutory and case law authority in support of this argument....

...The probate court’s order dismissing the petition to determine incapacity was based on the following three stated grounds: A. These proceedings have failed to satisfy [M.S.’s] due process rights or to comply with the procedural requirements of §744.331, Florida Statutes. B. The reports filed by the examining committee members were not filed within the time prescribed by §744.331 of the Florida Statutes or the Notice and Order issued by this Court on Court on [sic] December 10, 2015. C....

...statements were objected to by private counsel for [M.S.]. As all three grounds are supported by the record and Florida law, the order must be affirmed. It is undisputed that Ms. Valdes, as the court appointed Elisor, failed to comply with section 744.331(1), Florida Probate Rule 5.550(b)(2), and the 34 probate court’s Notice and Order....

...The record suggests that this brief contact was made in Ms. Valdes’ capacity as M.S.’s appointed counsel and was related to the motion for substitution of counsel. It is also undisputed that the reports were untimely filed in violation of section 744.331(3)(e) and the probate court’s Notice and Order....

...participate as fully as possible and to interfere as little as possible with the legal capacity of an alleged incapacitated person, section 744.3201, Florida Statutes (2015), which establishes the petition requirements, and section 36 744.331, which establishes the procedures for determining incapacity, both use mandatory terms such as “must” and “shall.” For example, section 744.3201(2) states that “[t]he petition must be verified and must” include specific...

...the alleged incapacitated person, the factual information being relied on to believe the person is incapacitated, and the primary language of the alleged incapacitated person, among other things. (emphasis added). Nearly every provision in section 744.331 contains mandatory language....

...cial reports voluntarily offered for use by [M.S.]. At least five (5) days before the hearing, or within fifteen (15) days of the date of this Order, whichever is earlier, a written report that confirms to the requirements of section 744.331, Florida Statutes, must be filed with the Clerk of this Court with copies sent to [M.S.], the Petitioner, and all attorneys of record....

...served, and that the notice has been read to, [M.S.]. (words “shall,” “must,” and “required” emphasized). Despite this mandatory language, the majority contends, without specifically stating so, that the requirements of section 744.331 and rule 5.550 are not really mandatory and that because M.S....

...[b]ecause of the fundamental constitutional implications of service of process, ‘statutes governing service of process are to be strictly construed and enforced.’”) (quoting Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001)). A review of the case law addressing section 744.331 and rule 5.550 reflects that the appellate courts have concluded that compliance with the statute and the rule is mandatory....

...which shall be followed to determine incapacity, including but not limited to the giving of notice, providing independent counsel, appointing an examining committee, [and] submitting a committee report.” Id. at 771-72. The In re Fey court concluded that the language of section 744.331 and rule 5.550 was clear and that compliance was mandatory....

...4th DCA 1977), that “proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, that statute must be strictly followed.” Id. at 1054 (emphasis added). The portion of section 744.331 at issue in Rothman was subsection (4) which 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 petiti...

...had concluded that the alleged incapacitated person was not incapacitated, the Fourth District ordered that the petition to determine incapacity be dismissed. The Fifth District has also found that “[c]ompliance with the requirements of section 744.331 is mandatory and the trial court’s failure to adhere to those requirements constitutes reversible error.” Borden v....

...Elfenbein, 174 So. 3d 516, 518 (Fla. 4th DCA 2012) (holding that “[t]he statutes governing the adjudication of incapacity and the appointment of a guardian for an incapacitated person are to be strictly construed” and “compliance with the requirements of section 744.331, Florida Statutes, is mandatory and failure to adhere to those requirements constitutes ‘error of fundamental proportions’”) (internal citations omitted). The majority further concludes that to require compliance with the strict mandates of section 744.331 and rule 5.550 is “draconian.” However, the majority’s displeasure with the mandatory language and requirements is not grounds to ignore them. Any changes to the mandatory language contained in section 744.331 and rule 5.550 must come from the Legislature, not the Bench. 42  CONCLUSION The language of section 744.331, rule 5.550, and the probate court’s Notice and Order is clear, unambiguous, and mandatory—and for good cause....

...argues that she was not afforded her right to counsel under the guardianship statute. A trial judge in guardianship proceedings has a mandatory statutory obligation to appoint counsel for the alleged incapacitated person. This obligation is established under section 744.331(2)(b), Florida Statutes (2019): (2) Attorney for the alleged incapacitated person.— 3  *** (b) The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court. Attorneys appointed pursuant to section 744.331(2)(b) are awarded reasonable fees, either “paid by the guardian from the property of the ward or, if the ward is indigent, by the state.” § 744.331(7)(b), Fla....

...er to a specific rule as a “Florida Bar Rule.” 8 We do not read this section to entitle appointed counsel in a guardianship proceeding to counter her client’s express wishes not to have a guardian appointed. Such a reading would conflict with section 744.331(2)(b). 6  While the plain language of section 744.102(1) clearly requires that an attorney represent the “expressed interests” of an alleged incapacitated person, there is a dearth of...

...(b) The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court. § 744.331(2)(b), Fla....

...Campbell, through her counsel on appeal, 2 has shown entitlement to the relief requested, the clerk of the circuit court is directed to accept the motion for substitution of counsel for filing and the trial court is directed to hold proceedings on the motion consistent with section 744.331, Florida Statutes. WOLF and M.K....

...1 The appellant claims the trial court erred in adjudging him incompetent, since Dr. Schneider, a member of the examining committee, failed to examine him following his appointment to the committee, pursuant to section 744.33l(5)(a), Florida Statutes (1981). Section 744.331(5)(a) states as follows: The judge shall appoint an examining committee consisting of one responsible citizen and two practicing physicians who shall not be associated with each other in the practice of medicine....

...e committee had not met as a group and made the examination. The Supreme Court held that the absence of one of the members from the examination was not a fatal defect nor even an irregularity, and that the statute (which was substantially similar to section 744.331 [5] [a]) did not specify in what manner the committee should function, but only required a thorough examination of the subject.

court-appointed attorney was served by mail. 4 § 744.331, Fla. Stat. (2016).

...d Spellman. When the discussion turned to Lee’s report, Mr. Rawl argued the reassessment report should be stricken because it was not obtained in compliance with the statutory procedures providing for examinations by committee members set forth in section 744.331(3), Florida Statutes (2010). Attorney McKinney argued that section 744.331(3) did not prohibit the Ward’s attorney from contacting the examining committee members or obtaining a reassessment....

...The more difficult question is whether the benefit to the Ward was negated by the method in which McKinney obtained the reassessment. The trial court determined that it was inappropriate for McKinney’s office to contact an examining committee member to request a reassessment. But section 744.331 does not specifically prohibit the Ward’s attorney from contacting an examining committee member to request a reassessment....

...Steiner, husband and wife. In good faith, their children, Margaret Steiner and Robert Steiner, each individually represented by counsel, filed incapacity and guardianship proceedings with respect to each of John and Joan Steiner. Subsequently, under section 744.331(2)(b), Florida Statutes (2013), the trial court appointed Michael Snively to represent John Steiner and Jacob Reiver and Michael Kouskoutis to represent Joan Steiner in their respective guardianship and incapacity proceedings....

...Thus the trial court dismissed the various incapacity and guardianship petitions, and no guardianship was ever placed over either of the Steiners’ property. During the pendency of the proceedings, Mr. Snively, Mr. Reiver, and Mr. Kouskoutis each petitioned the court for attorney’s fees under section 744.331....

...inal order. Finally, the Steiners argue that the trial court erred in failing to make specific findings that the court-appointed attorney’s services actually benefited the clients, as is required by section 744.108. “Because sections 744.108 and 744.331 do not contemplate the payment of fees and costs from an alleged incapacitated person where a guardianship is not established,” we agree that the Steiners are not Hable for the payment of the attorney’s fees and we reverse....

...y’s fees must be reversed. Although Klatthaar is dispositive and there remain no residual issues to be *255 addressed in this case, we write to emphasize the importance of correcting the statutory gap that gives rise to the issues presented. Under section 744.331, which governs procedures to determine incapacity, the court is required to appoint an attorney for any alleged incapacitated person against whom incapacity proceedings are brought, as well as an examining committee commissioned to determine incapacity. § 744.331(2)(b), (3)(a). “The examining committee and any attorney appointed under subsection (2) are entitled to reasonable fees to be determined by the court.” § 744.331(7)(a). “Section 744.331(7)(a) entitles the examining committee and the court-appointed attorney for the alleged incapacitated person to reasonable fees once incapacity is determined and a guardian is appointed” Klatthaar, 129 So.3d at 484 (emphasis added). Generally, the fees are to be “paid by the guardian from the property of the ward or, if the ward is indigent, by the state.” § 744.331(7)(b). However, if the petition for incapacity is dismissed, as it was in the instant case, “costs and attorney’s fees ... may be assessed against the petitioner if the court finds the petition to have been filed in bad faith.” See § 744.331(7)(c). But as we observed in Klatthaar — as the First, Fourth, and Fifth Districts have previously noted — section 744.331(7) is silent as to who is responsible for paying the court-appointed attorney’s fees and the examining committee’s fees when a good-faith petition is dismissed....

...Severson, 985 So.2d 639, 640 (Fla. 4th DCA 2008). This is the predicament the trial court in this case found itself in when faced with a request for fees from the court-appointed attorneys. Though court-appointed attorneys are clearly entitled to fees under section 744.331(7)(a), if guardianship is not established such fees cannot be paid out of the ward’s estate as contemplated in section 774.331(7)(b). Klatthaar, 129 So.3d at 484-85 . Furthermore, although section 774.331(7)(c) is controlling in the event of a dismissal, it only addresses who pays the attorney’s fees when the petition was brought in bad faith. § 774.331(7). Because section 744.331 does not address situations wherein good faith incapacity petitions are ultimately dismissed, court-appointed attorneys are left with a right without a remedy....

...Thus it appears that the legislature is proposing that when a good-faith petition is dismissed, examining committee fees shall be paid by the state but that if the court finds that the dismissed petition was brought in bad faith, the petitioner will be responsible for those fees. However, although section 744.331(7) pertains to the payment of fees to both examining committees and court-appointed attorneys, the proposed legislation makes no explicit recommendations as to who is responsible for paying the latter when a good-faith petition is dismissed....

...lishment of a guardianship.” 129 So.3d at 486 . The trial court’s final order awarding fees and order determining responsible party are thus reversed. Additionally, because of both the immediate and potential long-term implications of the gap in section 744.331(7), we again urge the legislature to address the statutory gap by clarifying which party is responsible for paying the attorney’s fees in this situation....

...of such person.” Florida Statutes do not define “capacity.” They do however provide a clue as to what it is not. Before being-amended in 1989, chapter 744, Florida Statutes, contained language to describe an “incompetent” person as one “likely to dissipate or lose his property.” § 744.331(1), Fla....

be represented by Hennessy, which violated section 744.331(2)(c), Florida Statutes (2013). That statute

...J. Buchbinder, for appellant. Luis E. Barreto & Assoc. P.A., and Luis E. Barreto; Billbrough & Marks, P.A., and G. Bart Billbrough, for appellee. Before EMAS, C.J., and LOGUE and SCALES, JJ. PER CURIAM.  Affirmed. See Fla. Stat. § 744.331(6)(b) (2020) (“A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.”); Adelman v....

...th the Clerk of the Circuit Court, Probate Division, for Orange County, Florida, and held in confidence and not revealed to anyone until further order of the court. This order was entered at the conclusion of an adjudicatory hearing held pursuant to section 744.331(5), Florida Statutes (1991), which resulted in Nelson’s being found to be totally incapacitated, and Glatthar (Nelson’s grandson) being appointed her plenary guardian....

of a petition to determine incapacity, and section 744.331 addresses the procedures that must be followed

of a petition to determine incapacity, and section 744.331 addresses the procedures that must be followed

...The court noted that Saadeh’s court-appointed attorney invited the guardian’s attorney to speak to Saadeh, and it compared this situation to a criminal defense attorney and his client engaging in plea negotiations with a prosecutor. The court also relied on section 744.331(2)(c), Florida Statutes, which precludes an attorney for the alleged incapacitated person from serving as either the guardian or the attorney for the guardian. 3  Here, the claim against the g...

...guardian owes a duty to the alleged incapacitated person under a third party beneficiary theory, we first turn to the guardianship statutes. Upon the filing of a petition to determine incapacity, the court must appoint an attorney to represent the alleged incapacitated person. § 744.331(2)(b), Fla. Stat. (2009). “Any attorney representing an alleged incapacitated person may not serve as guardian of the alleged incapacitated person or as counsel for the guardian of the alleged incapacitated person or the petitioner.” § 744.331(2)(c), Fla....

...tatutes. At a hearing on the petition, the court removed two of the three committee members for conflict of interest and struck their reports. The court then concluded that absent those reports, there was no clear and convincing proof of incapacity. Section 744.331 requires that each member of the examining committee examine the alleged incapacitated person and submit a report to the court....

...2d DCA 2003); The Florida Bar, Litigation Under Florida Probate Code § 1.6 (7th ed. 2009); 28 Fla. Jur. 2d Guardian and Ward, § 35 (updated Feb. 2010). "The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process." § 744.331(5)(a), Fla....

petition for adjudication of incapacity is filed. § 744.331(2)(b), Fla. Stat. (2012) The trial court must

...Distribution; flFinal discharge. § 735A03, Fla. Stat. Petition for family administration. § 735.203, Fla. Stat. Petition for summary administration. § 744.104, Fla. Stat. Verification of documents. § 744.3201, Fla. Stat. Petition to determine incapacity. *1073 § 744.331, Fla....

...Proceedings for review of employment of agents and compensation of personal representatives and employees of estate. § 733.901, Fla. Stat. Distribution; -IFinal discharge. § 744.106, Fla. Stat. Notice. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Notice of administration; filing of objections and claims. § 733.2123, Fla. Stat. Adjudication before issuance of letters. § 733.604(2), Fla. Stat. Inventory. § 733.705(2), (34), Fla. Stat. Payment of and objection to claims. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...ot be known at the time of filing the petition for the appointment since petition for appointment will henceforth be filed contemporaneously with the petition to determine incapacity. 1991 Revision: Implements 1989 amendments to sections 744.334 and 744.331(1), Florida Statutes, and 1990 technical amendments....

...2000 Revision: Deletes requirement in subdivision (a) to report social security number of proposed guardian. 2003 Revision: Committee notes revised. Statutory References § 744.309, Fla. Stat. Who may be appointed guardian of a resident ward. § 744.312, Fla. Stat. Considerations in appointment of guardian. § 744.331, Fla....

...Statutory References § 733.305(-l-X-Fla. StaL Trust-companies and other corporations — and associations. § 744.102(3), (13), Fla. Stat. Definitions. § 744.309, Fla. Stat. Who may be appointed guardian of a resident ward. § 744.3125, Fla. Stat. Application for appointment. § 744.331(1), Fla....

...1991 Revision: Changes to conform to 1989 and 1990 revisions to guardianship law. Adds additional documents to be signed by the guardian. Statutory references added. 2003 Revision: Committee notes revised. Statutory References § 744.3215, Fla,' Stat. Rights of persons determined incapacitated. § 744.331, Fla....

...temporary guardianship and appointed Jorge to serve as the emergency temporary guardian. The court also appointed a three-member examining 3 committee and set a hearing for a capacity determination for mid-December. See § 744.331(3), Fla....

PER CURIAM. Reversed. We hold that the provisions of section 744.331(4), Florida Statutes (1985) are mandatory and require an actual hearing to determine competency as outlined in the provisions of the section....

...We reverse the award of attorney’s fees and costs assessed against the appellant because there is no substantial competent evidence in the record to support the lower court’s conclusion that the petition for appointment of limited guardianship was filed in bad faith. Section 744.331(7)(c), Fla.Stat....

...We affirm the order insofar as it dismissed the petition to determine incapacity and found bad faith on the part of Mrs. McPheeters. However, that portion of the court’s order determining attorney’s fees is not ripe for review because it merely determined that Appellee is entitled to attorney’s fees pursuant to section 744.331(7)(c), Florida Statutes (2010), but did not determine the amount of fees....

...rdian and after a petition for determination of incapacity has been filed). Notice of the petition to determine incapacity must be served on the alleged incapacitated person and an attorney must be appointed for the alleged incapacitated person. See § 744.331(1), (2)(b), Fla. Stat. Within five days after the petition to determine incapacity is filed, the court must appoint a three-member examining committee to examine the alleged incapacitated person to determine whether the person is incapacitated. See § 744.331(3), Fla. Stat. If the majority of the committee determines that the alleged incapacitated person is not incapacitated, the court must dismiss the petition to determine incapacity. § 744.331(4), Fla....

...Levine, 4 So.3d 730, 731 (Fla. 5th DCA 2009); Mathes v. Huelsman, 743 So.2d 626, 627 (Fla. 2d DCA 1999). Otherwise, the case proceeds to an adjudicatory hearing for the court to determine based on clear and convincing evidence whether the person is incapacitated. § 744.331(5)—(6), Fla. Stat. Section 744.331 provides for the payment of the examining committee fees, as follows: (7) FEES.— (a) The examining committee ......

...��s fees because “the procedural statute for determining incapacity does not make the potential ward responsible for examining committee fees where the guardianship petition is dismissed or denied.” 985 So.2d 639, 640 (Fla. 4th DCA 2008) (citing section 744.331(7), Fla. Stat.). The court noted that there was a “gap” in section 744.331(7) where a good faith petition is denied or dismissed, and it urged the Legislature to amend the statute to specify who pays the examining committee’s fees in these circumstances....

...In Levine , the Fifth District reversed an order requiring the petitioner to pay the examining committee fees where the petition to determine incapacity was dismissed and there was no finding that the petition was filed in bad faith. See 4 So.3d at 731 . The court noted that “the statute [section 744.331(7) ] has a gap in determining responsibility for payment of the examining committee fees when a good faith petition is denied or dismissed.” Id. (citing Ehrlich ). And like the court in Ehrlich, the court in Levine urged the Legislature to address the issue. Id. We do not disagree with Ehrlich or Levine ; indeed, we agree with our sister courts that there is a “gap” in section 744.331(7) that the Legislature should address. Section 744.331(7)(b) provides that the examining committee fees are to be paid from the property of the ward, but this seems to presume that the petition for incapacity is granted and a guardian is appointed. And section 744.331(7)(c) provides that the costs of the proceeding— which, presumably, include the examining committee fees — are to be paid by the petitioner only if the court finds that the petition was filed in bad faith....

...or denied and there is no finding that the petition was filed in bad faith or, as here, there is an express finding that the petition was filed in good faith. Requiring the petitioner to pay the fees in these circumstances would be inconsistent with section 744.331(7)(c) and requiring the guardian to pay the fee from the ward’s property under section 744.331(7)(b) would not be possible if a guardian is never appointed; however, someone has to pay the fees because section 744.331(7)(a) states that the committee are “entitled to reasonable fees” and, moreover, it is unlikely that the professionals required for the examining committee would serve if there was a risk of non-payment or if the payment was dependent upon the outcome of the proceeding....

...§ 733.901, Fla. Stat. Final discharge. § 735.203, Fla. Stat. Petition for summary administration. § 744.104, Fla. Stat. Verification of documents. § 744.3085, Fla. Stat. Guardian advocates. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Final discharge. ch. 743, Fla. Stat. Disability of nonage of minors removed. § 744.106, Fla. Stat. Notice. § 744.301, Fla. Stat. Natural guardians. § 744.3085, Fla. Stat. Guardian advocates. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Adjudication before issuance of letters. § 733.705(2), (4), Fla. Stat. Payment of and objection to claims. ch. 743, Fla. Stat. Disability of nonage of minors removed. § 744.3085, Fla. Stat. Guardian advocates. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Capacity; appointment of guardian advocate. § 744.102(4), (9), (11), (14), (22) Fla. Stat. Definitions. § 744.3085, Fla. Stat. Guardian advocates. § 744.309, Fla. Stat. Who may be appointed guardian of a resident ward. § 744.3125, Fla. Stat. Application for appointment. § 744.331(1), Fla....

the court initiated proceedings pursuant to section 744.331, Florida Statutes, to determine the competence

...IAM. Mary Morgan (Petitioner), the limited guardian for her elderly aunt, Ruth Turgeon, filed a petition to determine incapacity seeking to have a plenary guardian appointed. Rather than appointing an examining committee within five days pursuant to section 744.331(3)(a), Florida Statutes (1997), the trial court treated the petition as a “suggestion of further incapacity of the ward” and proceeded to appoint one physician to examine the ward within twenty days, by analogy with section 744.464, Florida Statutes (1997), which provides for the restoration of one or more rights after an interested person files a suggestion of capacity. Petitioner filed a petition for a writ of mandamus to compel the circuit court to follow the dictates of section 744.331. 1 We grant the petition. See § 744.369(8) (additional authority may not be granted to guardian without a hearing as provided for in section 744.331); Robert P....

...Scheb, Guardian of the Person: Duties, Responsibilities, and Liabilities, in Florida Guardianship PRACTICE (The Florida Bar 3d ed.1998) § 14.23 (“[I]f the guardian believes that action should be taken that requires that additional rights of the ward be removed, the entire procedure to determine incapacity (see F.S. 744.331) must be repeated. F.S. 744.369(8).”). However, we withhold issuance of the writ, trusting that the circuit court judge will appoint a three-member examining committee pursuant to section 744.331 forthwith....

...r make her own health care decisions and wanted these decisions to be made by her sister or another family member. Thereafter, the trial court appointed a three-member examining committee to determine Ana Maria’s capacity as specified in section 744.331(3)(a), Fla. Stat. (2013). The trial court also appointed the Office of Criminal Conflict and Civil Regional Counsel to represent Ana Maria. See § 744.331(2)(a), Fla....

...(b)-(f) [No Change] -7-  Committee Notes [No Change] Rule History 1980 Revision–2020 Revision [No Change] 2024 Revision: Subdivision (b)(2) amended to conform to section 744.331(1), Florida Statutes....

Stat. Petition to determine incapacity. § 744.331, Fla. Stat. Procedures to determine incapacity

FRANK, Judge. The record in this matter, stemming from a competency/guardianship proceeding conducted pursuant to section 744.331, Florida Statutes (1986), reveals an intra-fa-milial conflict spawning the question of whether a trial court’s determination of incompetency may relate back to the moment when the psychiatric evaluation was undertaken....

...r the duration of the incompetency, be presumed to be incapable of managing his own affairs or of making any gift, contract, or instrument in writing that is binding on him or his estate. The filing of the judgment shall be notice of the incapacity. § 744.331(8), Fla.Stat....

...Proceedings for review of employment of agents and com *738 pensation of personal representatives and employees of estate. § 733.901, Fla. Stat. Final discharge. § 744.106, Fla. Stat. Notice. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...§ 733.212, Fla. Stat. Notice of administration; filing of objections. § 733.2123, Fla. Stat. Adjudication before issuance of letters. § 733.705(2), (4), Fla. Stat. Payment of and objection to claims. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...When an order determines that a person is incapable of exercising delegable lights, it shall specify whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. Committee Notes Rule History 1980 Revision: Implements 1979 amendments to section 744.331, Florida Statutes....

...The committee concluded that, procedurally, notice upon the alleged incapacitated person should occur in the same manner as formal notice in rule 5.040, but the required response under that rule should not be imposed upon the alleged incapacitated person. 1991 Revision: Implements 1989 amendments to sections 744.3201 and 744.331, Florida Statutes, and 1990 technical amendments....

...2006 Revision: Subdivisions (c) and (d) added to incorporate 2006 amendment to section 744.441 and creation of section 744.462, Florida Statutes. Committee notes revised. Statutory References § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...ot be known at the time of filing the petition for the appointment since petition for appointment will henceforth be filed contemporaneously with the petition to determine incapacity. 1991 Revision: Implements 1989 amendments to sections 744.334 and 744.331(1), Florida Statutes, and 1990 technical amendments....

...Subdivision (a)(10) added to implement section 744.1083, Florida Statutes. Committee notes revised. Statutory References § 744.1083, Fla. Stat. Professional guardian registration. § 744.309, Fla. Stat. Who may be appointed guardian of a resident ward. § 744.312, Fla. Stat. Considerations in appointment of guardian. § 744.331, Fla....

...2003 Revision: Committee notes revised. 2006 Revision: Committee notes revised. Statutory References § 744.102(34), (4314), Fla. Stat. Definitions. § 744.309, Fla. Stat. Who may be appointed guardian of a resident ward. § 744.3125, Fla. Stat. Application for appointment. § 744.331(1), Fla....

...The order shall specify whether there is an alternative to guardianship that will sufficiently address the problems of the ward, the continued need for a guardian, and the extent of the need for delegation of the ward’s rights. Committee Notes Rule History 2006 Revision: New rule. Statutory References § 744.331, Fla....

...Rule History 1980-2017 [NO CHANGE] 2020 Revision: Statutory references amended. Statutory References § 744.3115, Fla. Stat. Advance directives for health care. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

...Who may be appointed guardian of a resident ward. § 744.3115, Fla. Stat. Advance directives for health care. § 744.312, Fla. Stat. Considerations in appointment of guardian. § 744.3201, Fla. Stat. Petition to determine incapacity. § 744.331, Fla....

that only an order of incapacity pursuant to section 744.331, Florida Statutes (1997), invokes a three-year

...the clerk of the court within 15 days after appointment. (2)-(3) [No Change] (f) [No Change] Committee Notes Rule History 1980 Revision - 2024 Revision: [No Change] 2024 Revision: Subdivision (b)(2) amended to conform to section 744.331(1), Florida Statutes....

...l may request that the proceeding be recorded and transcribed. (emphasis added). In non-emergency situations, a trial court is required to appoint counsel for an alleged incapacitated person when the petition for adjudication of incapacity is filed. § 744.331(2)(b), Fla. Stat. (2012) The trial court must appoint the office of criminal conflict and civil regional counsel or private registry counsel, although the alleged incapacitated person can substitute his or her own counsel. § 744.331(2)(a), Fla....

...The trial court entered an order determining the ward to be incapacitated and appointing the third party as guardian of the ward’s person. Id. at 771 . The stepson appealed, arguing the trial court’s failure to appoint independent counsel constituted fundamental error. This court noted that section 744.331(2)(a) requires a trial court to appoint counsel for a ward when a petition to determine incapacity is filed....

...t of certiorari and quash the order of the trial court directing the petitioner to surrender his driver's license. Section 322.2505, Florida Statutes (2008), provides: Whenever a person is adjudicated mentally or physically incapacitated pursuant to s. 744.331 the court shall require such person to surrender to it all of the driver's licenses held by such person, and the court shall forward the same, together with a record of the adjudication to the department. Section 744.331, Florida Statutes (2008), provides the procedures for determining incapacity under the Florida Guardianship Law....

...iven its plain and obvious meaning." Vreuls v. Progressive Employer Servs., 881 So.2d 688, 690 (Fla. 1st DCA 2004). Section 322.2505, Florida Statutes (2008), plainly provides that the court shall require a person adjudicated incompetent pursuant to section 744.331 to surrender his or her driver's license. It references no other statute. The state argues that the procedures for determining incompetency under sections 744.331 and 916.106 are similar....

...4th DCA 2007). The statutes governing the adjudication of incapacity and the appointment of a guardian for an incapacitated person are to be strictly construed. In re Fey, 624 So. 2d 770, 772 (Fla. 4th DCA 1993) (holding compliance with the requirements of section 744.331, Florida Statutes, is mandatory and failure to adhere to those requirements constitutes “error of fundamental proportions”). This action was commenced under section 744.331, Florida Statutes (2009), entitled “[p]rocedures to determine incapacity.” The general magistrate issued his Report and Recommendations finding Mr....

...Prob. R. 5.095(h). Upon a finding of incapacity, the court is required to either appoint a guardian or find that there is an alternative to guardianship. If there is an alternative to guardianship, the court is prohibited from appointing a guardian. § 744.331(6)(b), Fla....

...Law, §§ 744.101-.1098, to arrive at a judicial determination of whether Mr. Beck was incapacitated and, if so, to appoint a guardian for such purposes as the trial court found necessary in light of the basis for any determination of incapacity. Section 744.331 sets forth the statutory procedures for determining whether a person alleged to be incapacitated is in fact incapacitated, including procedures for the appointment of counsel for the alleged incapacitated person, the appointment of...

...committee to report to the court on whether the person is incapacitated, and the payment of fees and costs for court-appointed counsel to the alleged incapacitated person and for the members of the examining committee. Upon a determination of incapacity in accord with section 744.331, the trial court may appoint a plenary or a limited guardian....

..."assumes a guardianship over a person not yet declared to be incapacitated and in need of a guardian"); Faulkner v. Faulkner, 65 So. 3d 1167, 1169-70 (Fla. 1st DCA 2011) (holding that an emergency temporary guardian is a guardian for purposes of the attorney's fee provisions of section 744.331(7))....

...(1986) (defining "ward," inter alia, as "a person who is under guard, protection, or surveillance"). -9- placed in an emergency temporary guardianship were reimbursable under the fee award provision of section 744.331(7). 65 So. 3d at 1168. The court observed that there is a gap in section 744.331(7) in that it provides that fees and costs incurred by members of an examining committee or counsel for an alleged incapacitated person are to be paid from "property of the ward" and that there would be no property of the ward from...

...itated and a plenary or limited guardian is not appointed. In reaching the opposite conclusion, the trial court found our decision Klatthaar controlling. In Klatthaar, we considered whether counsel appointed by the court pursuant to section 744.331 to represent an alleged incapacitated person in a proceeding to determine capacity was entitled to fees under section 744.108(1) where the alleged incapacitated person had died before the capacity determination could be made....

...temporary emergency guardianship. That question simply was not presented.4 3 Klatthaar also held that the attorney for the alleged incapacitated person and the members of an examining committee were not entitled to fees and costs under section 744.331(7) due to the statutory gap described in Faulkner. 129 So. 3d at 484- 85; see also In re Steiner, 159 So. 3d 253, 254-55 (Fla. 2d DCA 2015) (same). This aspect of Klatthaar is not relevant to this case, however, because neither Mr. Kemp nor Mr. Chlipala sought fees under section 744.331(7). 4 Mr....

...Chlipala was not entitled to fees and costs under section 744.108(1) solely because Mr. Beck died before his capacity was judicially determined and before a plenary or limited guardian was appointed. Mr. Berschback argues, however, that Mr. Chlipala was appointed by the trial court pursuant to section 744.331 and that his entitlement to fees and costs must arise, if at all, exclusively from section 744.331(7)—a statute under which Mr....

...McJunkin, 896 So.2d 962, 963 (Fla. 2d DCA 2005). The record shows that here, the evidence presented to the trial court fell far short of the clear and convincing standard necessary to support a finding that Losh is incapable of exercising her rights. See § 744.331(5)(c), Fla....