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If you have sought the determination of capacity and the appointment of a guardian with respect to a loved one by filing the appropriate petitions with the guardianship court, and these petitions are contested, you should be cognizant of this trap with respect to the examining committee reports.
When a petition to determine incapacity is filed, the guardianship court will appoint an attorney for the alleged incapacitated person, appoint 3-person examining committee to meet with and evaluate the alleged incapacitated person, and schedule a hearing on the petition to determine incapacity.
However, if the petition to determine incapacity is contested, sometimes the hearing that is scheduled will be continued or rescheduled to a later date. This is typically because the original hearing scheduled is for a short period of time, since most often, petitions to determine incapacity are uncontested.
How does the guardianship contest begin? Sometimes a friend or other family member gets involved and objects to the petition to determine incapacity.
And what about the committee’s statutorily-required reports? The court-appointed attorney may object to their use in contested proceedings by filing an objection on the examining committee reports, as allowed by Fla. Stat. §744.331(3)(i), which provides:
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.
So, then what happens? The petition to determine incapacity may well be scheduled for a hearing several months later. If that’s the case, and the examining committee reports are several months old, then there is a risk that the court-appointed attorney finds an expert to testify that the alleged incapacitated person has improved and possibly there is no need for a guardianship. If there is current expert testimony saying the alleged incapacitated person has improved, then under the Fourth District Court of Appeal’s reasoning in Graham v. Fla. Dept. of Children & Families, 970 So. 2d 438 (Fla. 4th DCA 2007) the court should dismiss the petition. It is not uncommon that there be an expert whom is hired to say what the court-appointed attorney for the alleged incapacitated person wants to hear.
Sometimes the attorneys involved in the guardianship case – the court appointed attorney and the petitioner’s attorney – can stipulate to the use of the examining committee reports even if they fall outside the statutory time frame with respect to the hearing date. Sometimes the Court may be left to reappoint the committee to reexamine the alleged incapacitated person. Even if the hearing is scheduled slightly after the time frame of the reports (and not months later), the attorneys would still need to stipulate to the use of the reports, or the committee may be reappointed and required to file new reports with the court. Depending on the alleged incapacitated person’s health and mental status, the reexamination may also be an issue.
The facts across each guardianship case are unique. If faced in any of these or similar guardianship situations, it is prudent to seek the advice of your trusted guardianship lawyer.