Blog

Florida Guardianship Examining Committee

When the mental capacity of a person comes into question, you can Petition, through your Florida Guardianship Attorney, to request that the appropriate Florida Circuit Court establish a Guardianship and appoint a Guardian.  There are two (2) types of Guardianships, Limited in their scope, and Plenary, or total in their scope. As part of the Florida Guardianship process, the alleged incapacitated person is examined by a three-person examining committee. Under Florida Statute, Chapter 744, prior to removing any or all of an individual’s civil and/or legal rights, it must be determined that the individual is incapable of exercising some or all of those rights.  You should consult with and retain an experienced and knowledgeable Florida Guardianship attorney to assist you with this process.

Florida Statute 744.331(3) outlines the duties of the examining committee members in determining the alleged Ward’s incapacity. The examining committee is comprised of three (3) members. Pursuant to Florida Statute 744.331(3)(a), one member must be a psychiatrist or other physician. The remaining two (2) members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by their knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion.

The Florida Statutes also control how the examination of the alleged incapacitated person is to be conducted.  Pursuant to Florida Statute 744.331(3)(a), if the attending or family physician is available for consultation, the committee must consult with the physician. Additionally, pursuant to Florida Statute Section 744.331(3)(e), each member of the examining committee must actually meet with and examine the alleged incapacitated person.  Each examining committee member must determine the level of the alleged incapacitated person’s mental capacity and mental abilities pursuant to Florida Statute 744.3215.  This statute section also requires that the committee members be provided access to previous examinations of the alleged incapacitated person. However, use of prior examinations is at the discretion of each committee member, and can typically only occur to the extent documents are voluntarily offered by the alleged incapacitated person.

Florida Statute 744.331(3)(f) also requires that each examining committee member conduct a comprehensive examination of the alleged incapacitated person, (the proposed Ward). Florida Statute Florida Statute 744.331(3)(g) requires that each examining committee member must also provide a report to the Court. The statute is specific on the way the examination of the alleged incapacitated person should be conducted and the requirements of the report regarding the alleged incapacity.

The examination must include:

(1) A physical examination;

(2) A mental health examination; and

(3) A functional assessment.

The 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, for example, the rights to marry; vote; contract; manage or dispose of property; have a driver’s license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.

(3) 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 alleged incapacitated person lacks the capacity to exercise their 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. It is preferable that the alleged incapacitated person be the only person responding to the examining committee member’s questions. Unfortunately, in some situation such as a stroke or other debilitating situation, the responses may be very limited or need to be done in writing if speech is not possible. This important information should be noted in the examining committee member’s report to the court.

The Court will review the examining committee reports and take into consideration their recommendations when determining whether the alleged incapacitated person’s rights should be removed or delegated partially (a Limited Guardianship) or completely (a total or Plenary Guardianship) and a Florida Guardianship established. This determination will also determine if a Limited or Plenary Guardian of the Person or Property is appointed. Also, if two (2) of the three (3) examining committee members determine the alleged incapacitated person has total or complete capacity, the Court according to Florida Statute section 744.331(4), shall dismiss the Guardianship and Incapacity Petitions and no Guardianship with be established and no Guardian will be appointed.

For assistance regarding these issues or other Guardianship and Estate Administration matters please contact Ann Marie Giordano Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7622, and visit my website at https://www.amgilden@annmariegildenlaw.com/.

This information is provided only as educational materials, and does not constitute the providing of legal advice, and does not create any attorney client relationship.