Levine v. Levine, — So.2d —-, 2009 WL 482260 (Fla. 5th DCA Feb 27, 2009)

Whether or not an adult is in fact legally “incapacitated” is often the crux of the case in contested guardianship proceedings. The fact finders that are supposed to answer that question are the members of the examining committee appointed by the probate judge pursuant to F.S. § 744.331.

If your client disagrees with the committee’s findings, you won’t get your day in court by simply demanding an evidentiary hearing. Under the peculiar procedural rules governing guardianship proceedings, you first have to file a motion to strike the committee’s report then have your evidentiary hearing. Make sense? I don’t think so, but according to the 5th DCA, that’s the law. Here’s why:

Evidentiary Hearing? Wrong Answer:

Dr. Levine contends that the language of [F.S. § 744.331(4)] notwithstanding, he should have the right to an evidentiary hearing to challenge the opinions of the examining committee members, either individually or collectively. We disagree, as the language of the statute is clear and unambiguous. Once a majority of the examining committee concluded that Mr. Levine was not incapacitated, the trial court was correct in dismissing the petition to determine incapacity and the petition for the appointment of a guardian. See Mathes v. Huelsman, 743 So.2d 626, 627 (Fla. 2d DCA 1999) (holding once examining committee concluded that alleged incapacitated person had full capacity, trial court was required to dismiss petition to determine incapacity); see also In re Keene, 343 So.2d 916 (Fla. 4th DCA 1977).

Motion to Strike? Right Answer:

FN1. Ms. Stimmel contends that if the examining committee concludes that the alleged incapacitated person is not incapacitated, there is no remedy available to the other interested parties involved in the proceeding even if the report is materially deficient. We disagree. We do not believe that the court must rely on a report from the examining committee which is materially deficient. However, rather than conducting an evidentiary hearing to test the examining committee’s report, an action that would violate [F.S. § 744.331(4)], a more appropriate remedy would be for the court, or any interested party, to move to strike the report. If such a motion is granted, the court could then order a re-examination by the existing committee (or committee member) or appoint a new committee (or committee member) and order a re-examination.

Bonus Point: Who Pays the Committee’s Fees?

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 I first wrote about here. In this case the probate judge ordered the petitioner to pay: “wrong answer” says the 5th DCA:

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. The court made no such finding here. We recognize that the statute has a gap in determining responsibility for payment of the examining committee fees when a good faith petition is denied or dismissed. See Ehrlich v. Severson, 985 So.2d 639, 640 n. 1 (Fla. 4th DCA 2008). As did the Ehrlich court, we urge the Legislature to specify who pays the examining committee fees in this circumstance.