Faulkner v. Faulkner, — So.3d —-, 2011 WL 2937302 (Fla. 1st DCA Jul 22, 2011)

If the examining committee says the person being examined is OK, that may be good news for the potential ward, but bad news for the examining committee. Why? Because now there’s no guardianship "estate" from which to pay their fees. So who pays? The statute doesn’t cover that contingency (oops!), a "gap" in the law this blog has covered in two prior cases [click here, here]. The judiciary’s consistent call has been for statutory reform to fill this "gap"; unfortunately we’re still waiting.

Case Study:

In this case a woman’s children filed a petition to determine her incapacity. The trial court ultimately dismissed the petition, but found that the children had filed it in good faith, and ordered their mother to pay the examining committee fees, among other costs. Mother appealed.

F.S. 744.331(7)(b) provides that the examining committee’s fees “shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state.” The 1st DCA noted, “this seems to presume that the petition for incapacity is granted and a guardian is appointed.” F.S. 744.331(7)(c) allows the court to charge the petitioner to assume the committee’s fees “if the court finds the petition to have been filed in bad faith.”

As we all know by now, and the 1st DCA pointed out again, there’s quite a gap between the two subsections: who pays the examining committee’s fees when the petition was found to have been filed in good faith (or there is no finding of bad faith), but ends up dismissed?

Rather than trying to stitch the two sections together, the 1st DCA focused on the fact that the trial court had appointed an emergency temporary guardian for the mother; this indicated that she “was a ward during the pendency of the incapacity proceeding.” This was sufficient, in the 1st DCA’s view, to justify holding her responsible for the examining committee’s fees (hint to guardianship litigators: when in doubt, get a temporary guardian appointed). All’s well that ends well, but what we really need is a statutory fix. Here’s how the 1st DCA summarized the current — unsatisfactory — state of the law, and how it ultimately justified the trial court’s fee ruling:

In Ehrlich v. Severson, the Fourth District reversed an order requiring the alleged incapacitated person to pay 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. Id. at 640 n. 1. Although the court did not specify the party responsible for paying the examining committee fees, the court, in a subsequent decision involving the same appellant, determined under the same statute that “any award of fees incurred by counsel appointed to represent the subject must come, if at all, from the petitioner.” Ehrlich v. Allen, 10 So.3d 1210, 1211 (Fla. 4th DCA 2009) (emphasis supplied).

In [Levine v. Levine, 4 So.3d 730, 731 (Fla. 5th DCA 2009)], 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. The “gap” in the statute is that it does not specify who pays the examining committee fees when the petition is dismissed 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. Cf. Ehrlich, 985 So.2d at 640 (acknowledging that “payment of the examining committee’s fees should not be contingent on the outcome of the competency determination”).

We need not resolve the issue in this case, however, because an emergency temporary guardian was appointed for Appellant. Thus, unlike Ehrlich, where a guardianship was apparently never established for appellant because she was characterized only as a “potential ward” ( see 985 So.2d at 640) or “alleged ward” (see 10 So.3d at 1211), here, Appellant was a ward during the pendency of the incapacity proceeding because an emergency temporary guardian was appointed for her. See § 744.102(22), Fla. Stat. (defining “ward” as “a person for whom a guardian has been appointed”). The examining committee fees were incurred, and ordered, while the emergency temporary guardian had legal control over Appellant’s property and, therefore, the fees were properly assessed against her under section 744.331(7)(b). For these reasons, we affirm the trial court’s order requiring Appellant to pay the examining committee fees.