Florida Statute 744.331 - Full Text and Legal Analysis

The 2024 Florida Statutes (including 2025 Special Session C)

Title XLIII
DOMESTIC RELATIONS

Chapter 744
GUARDIANSHIP

View Entire Chapter

F.S. 744.331

744.331 Procedures to determine incapacity.—

(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 guardian if any and copies of the petitions must be served on and read to the alleged incapacitated person. The notice and copies of the petitions must also be given to the attorney for the alleged incapacitated person, and served upon all next of kin identified in the petition. The notice must state the time and place of the hearing to inquire into the capacity of the alleged incapacitated person and that an attorney has been appointed to represent the person and that, if she or he is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on her or his behalf.

(2) ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.—

(a) When a court appoints an attorney for an alleged incapacitated person, the court must appoint the office of criminal conflict and civil regional counsel or a private attorney as prescribed in s. 27.511(6). A private attorney must be one who is included in the attorney registry compiled pursuant to s. 27.40. Appointments of private attorneys must be made on a rotating basis, taking into consideration conflicts arising under this chapter.

(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.

(c) 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.

(d) An attorney seeking to be appointed by a court for incapacity and guardianship proceedings must have completed a minimum of 8 hours of education in guardianship. A court may waive the initial training requirement for an attorney who has served as a court-appointed attorney in incapacity proceedings or as an attorney of record for guardians for not less than 3 years. This training requirement does not apply to a court-appointed attorney employed by an office of criminal conflict and civil regional counsel.

(3) EXAMINING COMMITTEE.—

(a) Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or any other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. One of three members of the committee must have knowledge of the type of incapacity alleged in the petition. Unless good cause is shown, the attending or family physician may not be appointed to the committee. If the attending or family physician is available for consultation, the committee must consult with the physician. Members of the examining committee may not be related to or associated with one another, with the petitioner, with counsel for the petitioner or the proposed guardian, or with the person alleged to be totally or partially incapacitated. A member may not be employed by any private or governmental agency that has custody of, or furnishes, services or subsidies, directly or indirectly, to the person or the family of the person alleged to be incapacitated or for whom a guardianship is sought. A petitioner may not serve as a member of the examining committee. Members of the examining committee must be able to communicate, either directly or through an interpreter, in the language that the alleged incapacitated person speaks or to communicate in a medium understandable to the alleged incapacitated person if she or he is able to communicate. The clerk of the court shall send notice of the appointment to each person appointed no later than 3 days after the court’s appointment.

(b) A person who has been appointed to serve as a member of an examining committee to examine an alleged incapacitated person may not thereafter be appointed as a guardian for the person who was the subject of the examination.

(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.

(d) A member of an examining committee must complete a minimum of 4 hours of initial training. The person must complete 2 hours of continuing education during each 2-year period after the initial training. The initial training and continuing education program must be developed under the supervision of the Office of Public and Professional 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. The court may waive the initial training requirement for a person who has served for not less than 5 years on examining committees. If a person wishes to obtain his or her continuing education on the Internet or by watching a video course, the person must first obtain the approval of the chief judge before taking an Internet or video course.

(e) 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. An examining committee member may allow a person to assist in communicating with the alleged incapacitated person when requested by the court-appointed counsel for the alleged incapacitated person and shall identify the person who provided assistance and describe the nature and method of assistance provided in his or her report. In addition to the examination, each examining committee member must have access to, and may consider, previous 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. Each member of the examining committee must file his or her report with the clerk of the court within 15 days after appointment.

(f) 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. The comprehensive examination report should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision. The comprehensive examination must include, if indicated:

1. A physical examination;

2. 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.

(g) Each committee member’s written report must include:

1. To the extent possible, a diagnosis, prognosis, and recommended course of treatment.

2. An evaluation of the alleged incapacitated person’s ability to retain her or his rights, including, without limitation, the rights to marry; vote; contract; manage or dispose of property; have a driver license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.

3. The results of the comprehensive examination and the committee member’s assessment of information provided by the attending or family physician, if any.

4. A description of any matters with respect to which the person lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the determination that the person lacks that capacity.

5. The names of all persons present during the time the committee member conducted his or her examination. If a person other than the person who is the subject of the examination supplies answers posed to the alleged incapacitated person, the report must include the response and the name of the person supplying the answer.

6. The signature of the committee member and the date and time the member conducted his or her examination.

(h) Within 3 days after receipt of each examining committee member’s report, the clerk shall serve the report on the petitioner and the attorney for the alleged incapacitated person by electronic mail delivery or United States mail, and, upon service, shall file a certificate of service in the incapacity proceeding. The petitioner and the attorney for the alleged incapacitated person must be served with all reports at least 10 days before the hearing on the petition, unless the reports are not complete, in which case the petitioner and attorney for the alleged incapacitated person may waive the 10 day requirement and consent to the consideration of the report by the court at the adjudicatory hearing. If such service is not timely effectuated, the petitioner or the alleged incapacitated person may move for a continuance of the hearing.

(i) The petitioner and the alleged incapacitated person may object to the introduction into evidence of all or any portion of the examining committee members’ reports by filing and serving a written objection on the other party no later than 5 days before the adjudicatory hearing. The objection must state the basis upon which the challenge to admissibility is made. If an objection is timely filed and served, the court shall apply the rules of evidence in determining the reports’ admissibility. For good cause shown, the court may extend the time to file and serve the written objection.

(4) DISMISSAL OF PETITION.—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.

(5) ADJUDICATORY HEARING.—

(a) Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard. The adjudicatory hearing must be conducted at least 10 days, which time period may be waived, but no more than 30 days, after the filing of the last filed report of the examining committee members, unless good cause is shown. 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.

(b) The alleged incapacitated person must be present at the adjudicatory hearing, unless waived by the alleged incapacitated person or the person’s attorney or unless good cause can be shown for her or his absence. Determination of good cause rests in the sound discretion of the court.

(c) 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.

(6) ORDER DETERMINING INCAPACITY.—If, after making findings of fact on the basis of clear and convincing evidence, the court finds that a person is incapacitated with respect to the exercise of a particular right, or all rights, the court shall enter a written order determining such incapacity. In determining incapacity, the court shall consider the person’s unique needs and abilities and may only remove those rights that the court finds the person does not have the capacity to exercise. A person is determined to be incapacitated only with respect to those rights specified in the order.

(a) The court shall make the following findings:

1. The exact nature and scope of the person’s incapacities;

2. The exact areas in which the person lacks capacity to make informed decisions about care and treatment services or to meet the essential requirements for her or his physical or mental health or safety;

3. The specific legal disabilities to which the person is subject; and

4. The specific rights that the person is incapable of exercising.

(b) 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 may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person. If the court finds there is not an alternative to guardianship that sufficiently addresses the problems of the incapacitated person, a guardian must be appointed to exercise the incapacitated person’s delegable rights.

(c) In determining that a person is totally incapacitated, the order must contain findings of fact demonstrating that the individual is totally without capacity to care for herself or himself or her or his property.

(d) An order adjudicating a person to be incapacitated constitutes proof of such incapacity until further order of the court.

(e) After the order determining that the person is incapacitated has been filed with the clerk, it must be served on the incapacitated person. The person is deemed incapacitated only to the extent of the findings of the court. The filing of the order is notice of the incapacity. An incapacitated person retains all rights not specifically removed by the court.

(f) Upon the filing of a verified statement by an interested person stating:

1. That he or she has a good faith belief that the alleged incapacitated person’s trust, trust amendment, or durable power of attorney is invalid; and

2. A reasonable factual basis for that belief,

the trust, trust amendment, or durable power of attorney shall not be deemed 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 agent.

(7) FEES.—

(a) The examining committee and any attorney appointed under subsection (2) are entitled to reasonable fees to be determined by the court.

(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. The state shall have a creditor’s claim against the guardianship property for any amounts paid under this section. The state may file its claim within 90 days after the entry of an order awarding attorney ad litem fees. If the state does not file its claim within the 90-day period, the state is thereafter barred from asserting the claim. Upon petition by the state for payment of the claim, the court shall enter an order authorizing immediate payment out of the property of the ward. The state shall keep a record of the payments.

1. The fees of the examining committee shall be paid upon court order as expert witness fees under s. 29.004(6).

2. Costs and attorney fees of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith. The petitioner shall also reimburse the state courts system for any amounts paid under subparagraph 1. upon such a finding.

History.—ss. 9, 26, ch. 75-222; s. 4, ch. 77-328; s. 1, ch. 78-342; s. 6, ch. 79-221; s. 35, ch. 89-96; s. 20, ch. 90-271; s. 4, ch. 91-303; s. 5, ch. 91-306; s. 7, ch. 96-354; s. 1783, ch. 97-102; s. 76, ch. 2004-265; s. 4, ch. 2006-77; s. 11, ch. 2006-178; s. 44, ch. 2006-217; s. 28, ch. 2007-62; s. 11, ch. 2015-83; s. 33, ch. 2016-40; s. 1, ch. 2017-16; s. 89, ch. 2018-110; s. 35, ch. 2020-9; s. 11, ch. 2022-195; s. 5, ch. 2024-242.

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F.S. 744.331 on CourtListener

Amendments to 744.331

Annotations, Discussions, Cases:

Cases Citing Statute 744.331

Total Results: 104

Hayes v. Guardianship of Thompson

952 So. 2d 498, 2006 WL 3228916

Supreme Court of Florida | Filed: Nov 9, 2006 | Docket: 1703263

Cited 27 times | Published

a petition to determine incapacity under section 744.331, Florida Statutes (2006), requires notice of

In Re Fey

624 So. 2d 770, 1993 WL 349921

District Court of Appeal of Florida | Filed: Sep 15, 1993 | Docket: 374811

Cited 14 times | Published

was violative of section 744.331(2)(a) and (b) (Supp. 1990). We agree. Section 744.331(2)(a) provides:

Borden v. Guardianship of Borden-Moore

818 So. 2d 604, 2002 WL 1000051

District Court of Appeal of Florida | Filed: May 17, 2002 | Docket: 1169813

Cited 8 times | Published

report, a requirement of section 744.331(3), Florida Statutes (2000). Section 744.331 contemplates that once

Owen v. Wilson

399 So. 2d 498

District Court of Appeal of Florida | Filed: Jun 10, 1981 | Docket: 1168343

Cited 7 times | Published

remand, 208 So.2d 670 (Fla. 2d DCA 1968). [3] § 744.331, Fla. Stat. [4] § 744.341, Fla. Stat.

Scannavino v. Florida Department of Corrections

242 F.R.D. 662, 2007 U.S. Dist. LEXIS 41579, 2007 WL 1557477

District Court, M.D. Florida | Filed: Apr 30, 2007 | Docket: 66030419

Cited 6 times | Published

Fla. Stat. § 744.3215(3)(b) (2006). Although Section 744.331, Florida Statutes, describes a lengthy administrative

Vaughan v. Guardianship of Vaughan

648 So. 2d 193, 19 Fla. L. Weekly Fed. D 2617

District Court of Appeal of Florida | Filed: Dec 16, 1994 | Docket: 1342691

Cited 6 times | Published

incapacitated according to the provisions of section 744.331 for a preceding period of at least three years;[1]

LeWinter v. Guardianship of LeWinter

606 So. 2d 387, 1992 WL 225514

District Court of Appeal of Florida | Filed: Sep 1, 1992 | Docket: 131154

Cited 6 times | Published

guardian to perform those functions for him. See § 744.331(6), Fla. Stat. (1991). We reverse because there

Jasser v. Saadeh

97 So. 3d 241, 2012 Fla. App. LEXIS 11670, 2012 WL 2912950

District Court of Appeal of Florida | Filed: Jul 18, 2012 | Docket: 60311733

Cited 5 times | Published

delegable rights of the ward. As is required under section 744.331(2)(a), Florida Statutes (2008), the court appointed

In Re Amendments to the Florida Probate Rules

584 So. 2d 964, 16 Fla. L. Weekly Supp. 557, 1991 Fla. LEXIS 1335, 1991 WL 169366

Supreme Court of Florida | Filed: Aug 22, 1991 | Docket: 1515221

Cited 5 times | Published

Fla. Stat. Notice and virtual representation. § 744.331(4), Fla. Stat. Adjudication of persons mentally

In Re Bryan

550 So. 2d 447, 1989 WL 104496

Supreme Court of Florida | Filed: Sep 7, 1989 | Docket: 1370195

Cited 5 times | Published

incompetent to manage his property pursuant to section 744.331, Florida Statutes (1987), petitions this Court

Ash v. Coconut Grove Bank

448 So. 2d 605

District Court of Appeal of Florida | Filed: Apr 17, 1984 | Docket: 1523006

Cited 5 times | Published

adjudicated mentally or physically incompetent. § 744.331(9), Fla. Stat. (1983); In re Sepe, 421 So.2d 27

Holmes v. Burchett

766 So. 2d 387, 2000 WL 1114258

District Court of Appeal of Florida | Filed: Aug 9, 2000 | Docket: 1329519

Cited 4 times | Published

notice of substitution of counsel pursuant to section 744.331(2)(a), Florida Statutes (1999). That statutory

Merrett v. Nagel

564 So. 2d 229, 1990 WL 95444

District Court of Appeal of Florida | Filed: Jul 12, 1990 | Docket: 1689008

Cited 4 times | Published

The petition met all of the requirements of section 744.331, Florida Statutes (1935). Merrett identified

Bryan v. Century National Bank

498 So. 2d 868, 11 Fla. L. Weekly 580, 1986 Fla. LEXIS 2817

Supreme Court of Florida | Filed: Nov 13, 1986 | Docket: 1700058

Cited 4 times | Published

requires an adjudication of incompetency, section 744.331, Florida Statutes (1985), the voluntary scheme

In Re Keene

343 So. 2d 916

District Court of Appeal of Florida | Filed: Mar 11, 1977 | Docket: 2291854

Cited 4 times | Published

completing the hearing which was held pursuant to Section 744.331(4), Florida Statutes (1975). It is appellants'

Garcia v. Valladares

99 So. 3d 518, 2011 WL 2500007, 2011 Fla. App. LEXIS 9593

District Court of Appeal of Florida | Filed: Jun 22, 2011 | Docket: 60313043

Cited 3 times | Published

entitlement to costs and attorney fees, pursuant to section 744.331(7)(c), Florida Statutes (2010). Because the

Poteat v. Guardianship of Poteat

771 So. 2d 569, 2000 WL 1505082

District Court of Appeal of Florida | Filed: Oct 11, 2000 | Docket: 1339546

Cited 3 times | Published

statutory standard of clear and convincing evidence. § 744.331(6), Fla. Stat. (1999). Clear and convincing evidence

Genova v. FLA. NAT. BANK OF PALM BEACH CTY.

433 So. 2d 1211

District Court of Appeal of Florida | Filed: Jul 27, 1983 | Docket: 1727508

Cited 3 times | Published

appoint to the examining committee required by section 744.331, Florida Statutes (1981), persons who have

Schlesinger v. Jacob

240 So. 3d 75

District Court of Appeal of Florida | Filed: Feb 21, 2018 | Docket: 6311527

Cited 2 times | Published

financial affairs and make medical decisions. Id. § 744.331(3)(g)1.-6. By filing and litigating the petitions

Glenda Martinez Smith v. J. Alan Smith

224 So. 3d 740, 42 Fla. L. Weekly Supp. 773, 2017 Fla. LEXIS 1759, 2017 WL 3774702

Supreme Court of Florida | Filed: Aug 31, 2017 | Docket: 6146154

Cited 2 times | Published

court may remove some of his or her rights. See § 744.331, Fla. Stat. (2016).1 Section 744.3215, Florida

Yazdzik v. Scott

129 So. 3d 482, 2014 WL 51382, 2014 Fla. App. LEXIS 126

District Court of Appeal of Florida | Filed: Jan 8, 2014 | Docket: 60237417

Cited 2 times | Published

McGarry to represent Ms. Klatthaar pursuant to section 744.331(2)(b), Florida Statutes (2011), and an order

Krumholz v. Guardianship of H.K.

114 So. 3d 341, 2013 WL 1980504, 2013 Fla. App. LEXIS 7817

District Court of Appeal of Florida | Filed: May 15, 2013 | Docket: 60231858

Cited 2 times | Published

the requisite findings of fact pursuant to section 744.331(6)(c), Florida Statutes (2012),1 and directing

O'Brien v. McMahon ex rel. Todd

44 So. 3d 1273, 2010 Fla. App. LEXIS 15063, 2010 WL 3909644

District Court of Appeal of Florida | Filed: Oct 7, 2010 | Docket: 60295559

Cited 2 times | Published

appoint a guardian of the property for a minor. See § 744.331, Fla. Stat. (2009); § 744.342, Fla. Stat. (2009)

Ehrlich v. Severson

985 So. 2d 639, 2008 WL 2512375

District Court of Appeal of Florida | Filed: Jun 25, 2008 | Docket: 16167

Cited 2 times | Published

guardianship petition is dismissed or denied. See § 744.331(7), Fla. Stat. (2007).[1] Reversed. WARNER and

In Re Guardianship of JDS

864 So. 2d 534, 2004 WL 42619

District Court of Appeal of Florida | Filed: Jan 9, 2004 | Docket: 1426074

Cited 2 times | Published

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

In Re Guardianship of Fuqua

646 So. 2d 795, 1994 Fla. App. LEXIS 11862, 1994 WL 679264

District Court of Appeal of Florida | Filed: Dec 7, 1994 | Docket: 1405191

Cited 2 times | Published

examining committee of three persons pursuant to section 744.331, Florida Statutes. Fuqua was concomitantly

Adam Gort and Lisa Forman v. William Gort

185 So. 3d 607, 2016 Fla. App. LEXIS 1448

District Court of Appeal of Florida | Filed: Feb 3, 2016 | Docket: 3033864

Cited 1 times | Published

adjudicatory hearing on the brother’s incapacity. See § 744.331(4), Fla. Stat. (2012). They also argue that the

Adelman v. Elfenbein

174 So. 3d 516, 2015 Fla. App. LEXIS 12773, 2015 WL 5026178

District Court of Appeal of Florida | Filed: Aug 26, 2015 | Docket: 60250432

Cited 1 times | Published

(holding compliance with the requirements of section 744.331, Florida Statutes, is mandatory and failure

Drelich v. Guardianship of Drelich

201 So. 3d 15, 2013 WL 5629770, 2013 Fla. App. LEXIS 16449

District Court of Appeal of Florida | Filed: Oct 16, 2013 | Docket: 60256968

Cited 1 times | Published

attorney’s fee award against the wife under section 744.331(7), Florida Statutes (2013). On the unique

Shen v. Parkes

100 So. 3d 1189, 2012 Fla. App. LEXIS 18965, 2012 WL 5347641

District Court of Appeal of Florida | Filed: Oct 31, 2012 | Docket: 60225552

Cited 1 times | Published

guardianship. Pursuant to the guardianship statute, section 744.331, Florida Statutes (2011), an examining committee

Rothman v. Rothman

93 So. 3d 1052, 2012 WL 1698322, 2012 Fla. App. LEXIS 7849

District Court of Appeal of Florida | Filed: May 16, 2012 | Docket: 60310417

Cited 1 times | Published

evaluate him have twice found him capacitated. § 744.331(4), Fla. Stat. (2010). We agree and grant the

Ehrlich v. Allen

10 So. 3d 1210, 2009 Fla. App. LEXIS 8764, 2009 WL 1872473

District Court of Appeal of Florida | Filed: Jul 1, 2009 | Docket: 2535425

Cited 1 times | Published

must come, if at all, from the petitioner. See § 744.331(7)(c), Fla. Stat. (2007) ("If the petition is

Levine v. Levine

4 So. 3d 730, 2009 Fla. App. LEXIS 3456, 2009 WL 482260

District Court of Appeal of Florida | Filed: Feb 27, 2009 | Docket: 1216940

Cited 1 times | Published

appointing a three-member examining committee. See § 744.331, Fla. Stat. (2008). After the examining committee

Graham v. Dept. of Children and Families

970 So. 2d 438, 2007 WL 4245627

District Court of Appeal of Florida | Filed: Dec 5, 2007 | Docket: 1695553

Cited 1 times | Published

response that this court should interpret section 744.331(6)(b), Florida Statutes (2007), as mandating

In Re Amendments to the Fl. Probate Rules

964 So. 2d 140, 32 Fla. L. Weekly Supp. 505, 2007 Fla. LEXIS 1234, 2007 WL 2002458

Supreme Court of Florida | Filed: Jul 12, 2007 | Docket: 1689866

Cited 1 times | Published

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

In Re Amendments to the Florida Probate Rules

959 So. 2d 1170, 32 Fla. L. Weekly Supp. 413, 2007 Fla. LEXIS 1193, 2007 WL 1932256

Supreme Court of Florida | Filed: Jul 5, 2007 | Docket: 1525727

Cited 1 times | Published

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

Smith v. Lynch

821 So. 2d 1197, 2002 WL 1625547

District Court of Appeal of Florida | Filed: Jul 24, 2002 | Docket: 1657102

Cited 1 times | Published

involving the failure to appoint a guardian. Section 744.331 provides that "[w]hen an order is entered which

Lefebvre v. North Broward Hosp. Dist.

566 So. 2d 568, 1990 WL 120665

District Court of Appeal of Florida | Filed: Aug 22, 1990 | Docket: 547478

Cited 1 times | Published

facility where the patient has been examined. Section 744.331(3)(a), however, provides that a three-member

Freeman v. Lane

504 So. 2d 1297, 12 Fla. L. Weekly 626

District Court of Appeal of Florida | Filed: Feb 26, 1987 | Docket: 453616

Cited 1 times | Published

for an adjudication of incompetency under section 744.331, Florida Statutes (1985), without the safeguards

In Re: Amendments to Florida Probate Rules - 2024 Legislation

Supreme Court of Florida | Filed: Feb 27, 2025 | Docket: 69131363

Published

Revision: Subdivision (b)(2) amended to conform to section 744.331(1), Florida Statutes. Committee notes revised

In Re: Amendments to Florida Probate Rules

Supreme Court of Florida | Filed: Dec 12, 2024 | Docket: 69351374

Published

Revision: Subdivision (b)(2) amended to conform to section 744.331(1), Florida Statutes. Committee notes revised

In Re: Amendments to Florida Probate Rules

Supreme Court of Florida | Filed: Nov 7, 2024 | Docket: 69351374

Published

Revision: Subdivision (b)(2) amended to conform to section 744.331(1), Florida Statutes. Committee notes revised

Orlando G. Silva v. Jorge E. Silva

District Court of Appeal of Florida | Filed: Jun 12, 2024 | Docket: 68161739

Published

capacity determination for mid-December. See § 744.331(3), Fla. Stat. (2023). Two of the three

THOMAS J. FOSTER, SR. v. CHRISTA RADULOVICH, THE EMERGENCY TEMPORARY GUARDIAN

District Court of Appeal of Florida | Filed: Sep 29, 2021 | Docket: 60496856

Published

the guardianship proceedings pursuant to section 744.331(2)b, Florida Statutes (2020). Appointed counsel

BETTY M. MORTENSON v. NANY O. MORTENSON-VIVAS

District Court of Appeal of Florida | Filed: Jun 9, 2021 | Docket: 59971335

Published

PER CURIAM. Affirmed. See Fla. Stat. § 744.331(6)(b) (2020) (“A guardian may not be appointed

In Re: Amendments to the Florida Probate Rules - 2020 Fast-Track Report

Supreme Court of Florida | Filed: Feb 18, 2021 | Docket: 59299022

Published

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

In Re: Amendments to the Florida Probate Rules - 2020 Fast-Track Report

Supreme Court of Florida | Filed: Dec 31, 2020 | Docket: 27333564

Published

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

In Re: Amendments to the Florida Probate Rules - Guardianship

Supreme Court of Florida | Filed: Sep 3, 2020 | Docket: 18407701

Published

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

BETH ANN ELISA ERLANDSSON v. THE GUARDIANSHIP OF BETH ANN ELISA ERLANDSSON

District Court of Appeal of Florida | Filed: May 6, 2020 | Docket: 17131153

Published

person. This obligation is established under section 744.331(2)(b), Florida Statutes (2019): (2)

BRENDA FORMAN v. HOWARD C. FORMAN

District Court of Appeal of Florida | Filed: Nov 6, 2019 | Docket: 16432703

Published

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

Wallace v. Comprehensive Pers. Care Servs., Inc.

275 So. 3d 782

District Court of Appeal of Florida | Filed: Jun 26, 2019 | Docket: 64719871

Published

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

Wallace v. Comprehensive Pers. Care Servs., Inc.

275 So. 3d 782

District Court of Appeal of Florida | Filed: Jun 26, 2019 | Docket: 64719872

Published

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

Cook v. Cook

260 So. 3d 281

District Court of Appeal of Florida | Filed: Nov 28, 2018 | Docket: 64699736

Published

problems with the analysis used by the majority. Section 744.331(3)(a), Florida Statutes (2017), governing the

Cook v. Cook

260 So. 3d 281

District Court of Appeal of Florida | Filed: Nov 28, 2018 | Docket: 64699737

Published

problems with the analysis used by the majority. Section 744.331(3)(a), Florida Statutes (2017), governing the

JAMES S COOK v. JOHN COOK and ROBERT COOK

District Court of Appeal of Florida | Filed: Sep 20, 2018 | Docket: 7905944

Published

three-member examining committee pursuant to section 744.331(3)(a), Florida Statutes (2017). Each member

Sarfaty v. in Re: M.S.

District Court of Appeal of Florida | Filed: Nov 1, 2017 | Docket: 6183861

Published

for all of the interested persons and for 4 § 744.331, Fla. Stat. (2016). See also Holmes v. Burchett

In Re: Amendments to Florida Probate Rules 5.550 and 5.695-2017 Fast-Track Report

226 So. 3d 245, 2017 WL 3910512

Supreme Court of Florida | Filed: Sep 7, 2017 | Docket: 6148797

Published

Florida Statutes (2016), and the creation of new section 744.331(3)(i), Florida Statutes, by section 1 of chapter

Lillie Campbell v. Roger E. Campbell James E. Campbell

219 So. 3d 938, 2017 WL 2126617, 2017 Fla. App. LEXIS 6932

District Court of Appeal of Florida | Filed: May 16, 2017 | Docket: 6067428

Published

proceedings on the motion consistent with section 744.331, Florida Statutes. WOLF and M.K. THOMAS

Sarfaty v. in Re: M.S.

District Court of Appeal of Florida | Filed: May 10, 2017 | Docket: 6060355

Published

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

Kemp v. Berschback

204 So. 3d 143, 2016 Fla. App. LEXIS 17250

District Court of Appeal of Florida | Filed: Nov 18, 2016 | Docket: 4540928

Published

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

In Re AMENDMENTS TO the FLORIDA PROBATE RULES

200 So. 3d 761, 41 Fla. L. Weekly Supp. 384, 2016 Fla. LEXIS 2037, 2016 WL 4916772

Supreme Court of Florida | Filed: Sep 15, 2016 | Docket: 4422158

Published

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

Linde v. Linde

199 So. 3d 1102, 2016 Fla. App. LEXIS 13400, 2016 WL 4651336

District Court of Appeal of Florida | Filed: Sep 7, 2016 | Docket: 4419701

Published

capacity of their father, Ward. Pursuant to section 744.331, the trial court appointed a three-person examining

In Re AMENDMENTS TO the FLORIDA PROBATE RULES

199 So. 3d 835, 41 Fla. L. Weekly Supp. 358, 2016 Fla. LEXIS 1963, 2016 WL 4586099

Supreme Court of Florida | Filed: Sep 1, 2016 | Docket: 4418545

Published

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

Kemp v. Berschback

District Court of Appeal of Florida | Filed: Aug 10, 2016 | Docket: 4118418

Published

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

Glenda Martinez Smith v. J. Alan Smith

199 So. 3d 911, 2016 Fla. App. LEXIS 3130, 2016 WL 803625

District Court of Appeal of Florida | Filed: Mar 2, 2016 | Docket: 3040737

Published

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

Ruby C. Adelman, as the Power of Attorney, Health Care Surrogate, Pre-need Guardian of Burton K. Adelman, and the Successor Trustee of the Burton K. Adelman Restated and Amended Revocable Trust v. Hillary Elfenbein

District Court of Appeal of Florida | Filed: Aug 26, 2015 | Docket: 2687695

Published

(holding compliance with the requirements of section 744.331, Florida Statutes, is mandatory and failure

Karim H. Saadeh v. Michael Connors, Colette Meyer Deborah Barfield and Jacob Noble

166 So. 3d 959, 2015 Fla. App. LEXIS 9575, 2015 WL 3875682

District Court of Appeal of Florida | Filed: Jun 24, 2015 | Docket: 2679243

Published

with a prosecutor. The court also relied on section 744.331(2)(c), Florida Statutes, which precludes an

Steiner v. Guardianship of Steiner

159 So. 3d 253, 2015 Fla. App. LEXIS 2968, 2015 WL 894259

District Court of Appeal of Florida | Filed: Mar 4, 2015 | Docket: 60246533

Published

John and Joan Steiner. Subsequently, under section 744.331(2)(b), Florida Statutes (2013), the trial court

Silveira v. Guardianship of Quiroga

156 So. 3d 574, 2015 Fla. App. LEXIS 1000, 2015 WL 350723

District Court of Appeal of Florida | Filed: Jan 28, 2015 | Docket: 2628625

Published

determine Ana Maria’s capacity as specified in section 744.331(3)(a), Fla. Stat. (2013). The trial court also

In Re AMENDMENTS TO FLORIDA PROBATE RULE 5.590

150 So. 3d 1100, 39 Fla. L. Weekly Supp. 664, 2014 Fla. LEXIS 3295, 2014 WL 5713899

Supreme Court of Florida | Filed: Nov 6, 2014 | Docket: 2593367

Published

Fla. Stat. Application for appointment. § 744.331(1), Fla. Stat. Procedures to determine incapacity

Guardianship of Rawl v. Rawl

133 So. 3d 1179, 2014 WL 889050

District Court of Appeal of Florida | Filed: Mar 7, 2014 | Docket: 60238716

Published

forth in section 744.331(3), Florida Statutes (2010). Attorney McKinney argued that section 744.331(3) did

Searle v. Bent

137 So. 3d 1028, 2013 WL 5225218, 2013 Fla. App. LEXIS 14798

District Court of Appeal of Florida | Filed: Sep 18, 2013 | Docket: 60240135

Published

Statement by Interested Person Pursuant to F.S. § 744.331(6)®.” In that affidavit, she alleged that her

Martinez v. Cramer

121 So. 3d 580, 2013 WL 4006526, 2013 Fla. App. LEXIS 12357

District Court of Appeal of Florida | Filed: Aug 7, 2013 | Docket: 60234451

Published

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

McPheeters v. Guardianship of McPheeters

118 So. 3d 903, 2013 WL 3834330, 2013 Fla. App. LEXIS 11734

District Court of Appeal of Florida | Filed: Jul 26, 2013 | Docket: 60233471

Published

is entitled to attorney’s fees pursuant to section 744.331(7)(c), Florida Statutes (2010), but did not

Martinez v. Cramer

125 So. 3d 974, 2013 WL 3014005, 2013 Fla. App. LEXIS 9647

District Court of Appeal of Florida | Filed: Jun 19, 2013 | Docket: 60236144

Published

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

Losh v. McKinley

86 So. 3d 1150, 2012 WL 1414315, 2012 Fla. App. LEXIS 6380

District Court of Appeal of Florida | Filed: Apr 25, 2012 | Docket: 60307554

Published

Losh is incapable of exercising her rights. See § 744.331(5)(c), Fla. Stat. (2011) (“[T]he partial or total

Faulkner v. Faulkner

65 So. 3d 1167, 2011 Fla. App. LEXIS 11450, 2011 WL 2937302

District Court of Appeal of Florida | Filed: Jul 22, 2011 | Docket: 60301643

Published

appointed for the alleged incapacitated person. See § 744.331(1), (2)(b), Fla. Stat. Within five days after

In Re Amendments to the Florida Probate Rules

50 So. 3d 578, 35 Fla. L. Weekly Supp. 482, 2010 Fla. LEXIS 1455, 2010 WL 3431722

Supreme Court of Florida | Filed: Sep 2, 2010 | Docket: 2396382

Published

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

Fernandez v. GUARDIANSHIP OF FERNANDEZ

36 So. 3d 175, 2010 Fla. App. LEXIS 7604, 2010 WL 2178831

District Court of Appeal of Florida | Filed: Jun 2, 2010 | Docket: 1638932

Published

and in a manner consistent with due process." § 744.331(5)(a), Fla. Stat. (2008). As this was an evidentiary

Legg v. State

15 So. 3d 918, 2009 Fla. App. LEXIS 10957, 2009 WL 2392973

District Court of Appeal of Florida | Filed: Aug 6, 2009 | Docket: 1295729

Published

record of the adjudication to the department. Section 744.331, Florida Statutes (2008), provides the procedures

In Re Amend. to Florida Probate Rules

986 So. 2d 576, 33 Fla. L. Weekly Supp. 542, 2008 Fla. LEXIS 1242, 2008 WL 2686339

Supreme Court of Florida | Filed: Jul 10, 2008 | Docket: 1426902

Published

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

In re Amendments to the Florida Probate Rules

948 So. 2d 735, 32 Fla. L. Weekly Supp. 79, 2007 Fla. LEXIS 132, 2007 WL 268753

Supreme Court of Florida | Filed: Feb 1, 2007 | Docket: 64849101

Published

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

In re Amendments to the Florida Probate Rules

912 So. 2d 1178, 30 Fla. L. Weekly Supp. 666, 2005 Fla. LEXIS 1917, 2005 WL 2385258

Supreme Court of Florida | Filed: Sep 29, 2005 | Docket: 64840686

Published

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

McJunkin v. McJunkin

896 So. 2d 962, 2005 Fla. App. LEXIS 4304, 2005 WL 711655

District Court of Appeal of Florida | Filed: Mar 30, 2005 | Docket: 64836909

Published

one “likely to dissipate or lose his property.” § 744.331(1), Fla. Stat. (1987), After the statute was amended

Wixtrom v. Department of Children & Families

864 So. 2d 534, 2004 Fla. App. LEXIS 161

District Court of Appeal of Florida | Filed: Jan 9, 2004 | Docket: 64827650

Published

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

Amendments to the Florida Probate Rules

848 So. 2d 1069, 28 Fla. L. Weekly Supp. 495, 2003 Fla. LEXIS 1063, 2003 WL 21402500

Supreme Court of Florida | Filed: Jun 19, 2003 | Docket: 64823856

Published

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

Molnar v. Maltz

786 So. 2d 1276, 2001 Fla. App. LEXIS 8293, 2001 WL 686428

District Court of Appeal of Florida | Filed: Jun 20, 2001 | Docket: 64805978

Published

clear and convincing proof of incapacity. Section 744.331 requires that each member of the examining

Amendments to the Florida Probate Rules

778 So. 2d 272, 25 Fla. L. Weekly Supp. 730, 2000 Fla. LEXIS 1905, 2000 WL 1424512

Supreme Court of Florida | Filed: Sep 28, 2000 | Docket: 64803740

Published

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

Mathes v. Huelsman

743 So. 2d 626, 1999 Fla. App. LEXIS 13935, 1999 WL 961188

District Court of Appeal of Florida | Filed: Oct 22, 1999 | Docket: 64791766

Published

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

Bass v. Hillsborough County

739 So. 2d 172, 1999 Fla. App. LEXIS 11662, 1999 WL 675178

District Court of Appeal of Florida | Filed: Sep 1, 1999 | Docket: 64790169

Published

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

Morgan v. Guardianship of Turgeon

724 So. 2d 175, 1999 Fla. App. LEXIS 69, 1999 WL 2803

District Court of Appeal of Florida | Filed: Jan 6, 1999 | Docket: 64785473

Published

examining committee within five days pursuant to section 744.331(3)(a), Florida Statutes (1997), the trial court

Cooper v. Cooper

725 So. 2d 1175, 1998 Fla. App. LEXIS 15889, 1998 WL 879667

District Court of Appeal of Florida | Filed: Dec 18, 1998 | Docket: 64786030

Published

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

Wilson v. Taylor

620 So. 2d 1145, 1993 Fla. App. LEXIS 7362, 1993 WL 247113

District Court of Appeal of Florida | Filed: Jul 9, 1993 | Docket: 64697491

Published

limited guardianship was filed in bad faith. Section 744.331(7)(c), Fla.Stat. (1991). REVERSED. GRIFFIN

In re Amendments to the Florida Probate Rules

607 So. 2d 1306, 17 Fla. L. Weekly Supp. 636, 1992 Fla. LEXIS 1622, 1992 WL 249483

Supreme Court of Florida | Filed: Sep 24, 1992 | Docket: 64671175

Published

Fla.Stat. Petition to determine incapacity. § 744.331(4), Fla.Stat. Adjudication of persons mentally

Glatthar v. Hoequist

600 So. 2d 1205, 1992 Fla. App. LEXIS 5821, 1992 WL 118343

District Court of Appeal of Florida | Filed: Jun 5, 1992 | Docket: 64668539

Published

of an adjudicatory hearing held pursuant to section 744.331(5), Florida Statutes (1991), which resulted

Marine Bank of Monroe County v. Milstein

533 So. 2d 891, 13 Fla. L. Weekly 2470, 1988 Fla. App. LEXIS 4889, 1988 WL 117611

District Court of Appeal of Florida | Filed: Nov 8, 1988 | Docket: 64638549

Published

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

In re Bryan

531 So. 2d 1062, 13 Fla. L. Weekly 2307, 1988 Fla. App. LEXIS 4520, 1988 WL 103913

District Court of Appeal of Florida | Filed: Oct 12, 1988 | Docket: 64637402

Published

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

Florida Bar

537 So. 2d 500, 13 Fla. L. Weekly 601, 1988 Fla. LEXIS 1463, 1988 WL 143178

Supreme Court of Florida | Filed: Sep 29, 1988 | Docket: 64640022

Published

administration. F.S. 744.104 Verification of documents. F.S. 744.331(1) Adjudication of person mentally or physically

Florida Bar

531 So. 2d 1261, 13 Fla. L. Weekly 601, 1988 Fla. LEXIS 1475, 1988 WL 53983

Supreme Court of Florida | Filed: Sep 29, 1988 | Docket: 64637451

Published

administration. F.S. 744.104 Verification of documents. F.S. 744.331(1) Adjudication of person mentally or physically

Baskin v. Sherburne

520 So. 2d 103, 13 Fla. L. Weekly 502, 1988 Fla. App. LEXIS 589, 1988 WL 11345

District Court of Appeal of Florida | Filed: Feb 17, 1988 | Docket: 64632722

Published

competency/guardianship proceeding conducted pursuant to section 744.331, Florida Statutes (1986), reveals an intra-fa-milial

In re Frederick

508 So. 2d 44, 12 Fla. L. Weekly 1437, 1987 Fla. App. LEXIS 8666

District Court of Appeal of Florida | Filed: Jun 10, 1987 | Docket: 64627559

Published

Reversed. We hold that the provisions of section 744.331(4), Florida Statutes (1985) are mandatory and

Florida Bar re Amendment to Rules

458 So. 2d 1079, 9 Fla. L. Weekly 401, 1984 Fla. LEXIS 3390

Supreme Court of Florida | Filed: Sep 13, 1984 | Docket: 64608151

Published

Committee notes revised. Statutory Reference F.S. 744.331 Adjudication of persons mentally or physically

Taylor v. Blank

431 So. 2d 285, 1983 Fla. App. LEXIS 19797

District Court of Appeal of Florida | Filed: May 12, 1983 | Docket: 64596960

Published

section 744.33l(5)(a), Florida Statutes (1981). Section 744.331(5)(a) states as follows: The judge shall appoint

Douglass v. Sepe

421 So. 2d 27, 1982 Fla. App. LEXIS 21474

District Court of Appeal of Florida | Filed: Oct 19, 1982 | Docket: 64592926

Published

such an appointment is mandatory. We agree. Section 744.331(9), Florida Statutes (1981), provides: “When