Examining committee reports as a basis to dismiss petitions to determine incapacity: a question of admissibility and evidentiary relevancy.

AuthorZamora, Enrique
PositionFlorida - St. Thomas Law Review 25th Anniversary Issue


"In our present day paternalistic society we must take care that in our zeal for protecting those who cannot protect themselves we do not unnecessarily deprive them of some rather precious individual rights." (1) Society continues to struggle with the concerns that arise with the person or property of adults who are incapacitated. (2) The Associated Press has published literature on guardianship abuses and this series of articles has prompted Congress to form a committee to look into abusive guardianship practices. (3) The congressional guardianship committee concluded that the "typical ward has fewer rights than the typical convicted felon." (4)

(2) Rights that may be removed from a person by an order determining incapacity include the right:

(a) To marry.

(b) To vote.

(c) To personally apply for government benefits.

(d) To have a driver's license.

(e) To travel.

(fifo seek or retain employment.

(3) Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right:

(a) To contract.

(b) To sue and defend lawsuits.

(c) To apply for government benefits.

(d) To manage property or to make any gift or disposition of property.

(e) To determine his or her residence.

(f) To consent to medical and mental health treatment.

(g) To make decisions about his or her social environment or other social aspects of his or her life. (5)

In 2003, the Florida Legislature created a Guardianship Task Force ("Task Force") to examine guardianship and incapacity for the purpose of recommending specific statutory changes. (6) This resulted in modifications to Chapter 744 of the Florida Statutes. (7) Section 744.331 (3)(f) states: 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.

    In 2004, section 744.331(4) was added, creating the subsection entitled "Dismissal of petition." This provision states that if a majority of the examining committee members conclude the Alleged Incapacitated Person ("AIP") "is not incapacitated in any respect, the court shall dismiss the petition." (8) Nearly a decade later, the changes made by the Task Force are beginning to encounter unforeseen consequences. The Task Force examined the legislative intent of Chapter 744 of the Florida Statutes, specifically the language that states, "[T]o make available the least restrictive form of guardianship," and, "[T]hat adjudicating a person totally incapacitated and in need of a guardian deprives such person of all of her or his civil and legal rights." (9) With this language in mind, the Task Force determined that the opinion of two examining committee members (10) reporting against the need for a guardianship (11) would warrant dismissal of the petition. (12)

    Even before the addition of section 744.331 (4), Chapter 744 required the court to appoint an examining committee of three members. Such committee members must be appointed within five days of the filing of a petition to determine incapacity. (13) Each individual in the examining committee is required to submit a report within fifteen days of being appointed to the committee. (14) "[T]he statutorily required examining committee members' reports are material to the factual determination of capacity." (15) However, without the live testimony of the committee members, the reports are insufficient to warrant the overruling of hearsay objections to the admission of the examining members' reports. (16)

    This article will focus on answering two issues that play an important role in the determination of the need of establishing a guardianship for an AIP. Specifically, (1) whether the requirement that a petition to determine incapacity be dismissed if two examining committee members opine there is no incapacity, in violation of Florida's Evidence Code as well as Chapter 744's requirements; and (2) whether examining committee reports, without testimony, are hearsay under Florida's Evidence Code, section 90.803 of the Florida Statutes, and usurp judicial discretion under section 90.703. (17) Part I will delineate the problem associated with section 744.331(4) of the Florida Statutes and hearsay objections to the examining committee reports. Part II will discuss the conflicting claims that can be raised by the petitioner, (18) the attorney for the AIP, and the Florida Legislature. Part III will detail the past trends and decisions with regard to the requirement that a Petition to Determine Incapacity be dismissed if two examining committee members opine there is no incapacity. Part III will also outline possible violations of Florida's Evidence Code, violations of the requirements of Chapter 744, as well as the conditioning factors behind examining committee reports qualifying as hearsay under Florida's Evidence Code, section 90.803. Part IV will set its sights on projections for future decisions in light of changed and changing conditioning factors. Part V will pose potential recommendations for amending the current statutes in order to solve the guardianship issues addressed in this article.


    1. SECTION 744.331(4)

      "A state's power to intervene in the private lives of its incapacitated citizens for their protection arises principally from its role as parens patriae." (19) There is a subsection in the Florida guardianship statute providing that when "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." (20) This rule takes the discretion of determining incapacity out of the hands of the judge and instead bestows it upon the examining committee. The burden of proof required for a finding of incapacity is clear and convincing evidence. (21) Clear and convincing evidence has been defined as "evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue." (22) Whether someone is incapacitated is a legal question that can only be determined by a judge. (23) It has been argued that section 744.331 (4) deprives the judge of his or her ability to determine the capacity, or lack thereof, of an AIP because of the weight placed on the examining committee's reports. (24) This occurs because the judge is required to dismiss the petition based solely on the examining committee's reports without considering all of the available evidence. (25) By requiring the judge to deny the petition and use only the examining committee's reports, section 744.331(4) runs afoul of section 744.331(3)(f). (26) Section 744.331(3)(f) states, "The comprehensive examination report should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision." (27) By obligating the judge to dismiss the Petition to Determine Incapacity based on two of the examining committee's reports, the judge is required to use only the reports in making the capacity and guardianship decision. (28) Thus, the judge is no longer afforded the discretion to weigh additional evidence that may be relevant in making his or her decision--evidence such as testimony from various family members, friends, and the AIP's treating physicians. This exclusion of additional evidence "creates a situation where the judge must use said reports as the only evidence in making a capacity decision." (29) This situation raises the question of whether the opinions of two of the three committee members are sufficient to rise to the level of clear and convincing evidence without including additional evidence that can be presented in order to aid in making incapacity and guardianship decisions.


      Every petition for incapacity must have an examining committee evaluate the AIP, and every member of this committee must make a report of the examination detailing his or her findings. (30) Each committee member's written report must include:

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

  5. 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's license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.

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

  7. 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.

  8. 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.

  9. The signature of the committee member and the date and time the member conducted his or her examination. (31)

    Notwithstanding the fact that the committee members' reports are statutorily required for adjudicating incapacity, the rules of evidence in civil actions are applicable. (32) The weight afforded to the probative value of the committee members' reports has been enhanced by the statutory prescription that...

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