Sarfaty v. in Re: M.S.

Third District Court of Appeal
State of Florida

Opinion filed November 1, 2017.

________________

No. 3D16-1419
Lower Tribunal No. 15-6691
________________

Gilberto Sarfaty,
Appellant,

vs.

In Re: M.S.,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Celeste Hardee
Muir, Judge.

Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten; Dunwody
White & Landon, P.A., and Jeremy P. Leathe; Markowitz, Ringel, Trusty &
Hartog, P.A., and Joshua Rosenberg and Candis Trusty, for appellant.

Akerman LLP, and Gerald B. Cope, Jr., Richard C. Milstein and Dale Noll,
for appellee.

Before ROTHENBERG, C.J., and SALTER and EMAS, JJ.

ON MOTION FOR REHEARING OR CLARIFICATION

SALTER, J.
 We grant in part the appellee’s motion for rehearing or clarification,

withdraw our opinion issued May 10, 2017, and substitute the following opinion in

its place.

Gilberto Sarfaty appeals the dismissal (without leave to amend) of his

petition to determine incapacity of his adult brother, M.S. We reverse the order of

dismissal and remand the guardianship case to the circuit court for further

proceedings.

The Petition and Psychological Assessment Report Attached to the Petition

The verified petition alleged that 46-year-old M.S. is incapacitated and has

been incapacitated his entire life. The petition attached a psychological assessment

of M.S. prepared by a South Florida consulting psychologist1 prepared six months

before the petition was filed. The assessment was based on personal clinical

interviews of M.S., an interview of the petitioner, and cognitive evaluation tests.

The assessment included background information that M.S. was diagnosed with

intellectual disability secondary to neurocognitive deficits as a child in his native

Peru. M.S. attended specialized training programs in Massachusetts and New

Haven, Connecticut, for the development of independent living and work skills.

The verified petition and attached assessment report stated that M.S. lives in

a condominium in Aventura and receives assistance from a Peruvian aide and her

1 Dr. Toomer, a Ph.D. psychologist and diplomate of the American Board of
Professional Psychology.
2
husband with activities such as shopping, participating in a support group for

outings such as movies, and keeping appointments. The psychologist reported that

M.S.’s executive functioning “requires ongoing functional support,” and that his

sister in New York City manages M.S.’s access to money. The assessment report

further stated:

Given these deficits, [M.S.] will require supervision in terms of
managing his affairs, including health, finance, self-care and any
business decisions. When questioned regarding his role in family
business affairs, [M.S.] had no answer and indicated that he did not
know. [M.S.] is unable to comprehend issues related to assets and
liabilities, corporate structure and organization, division of shares,
power of attorney, voting rights, etc., and other issues related to
financial management. This deficit places him at risk for financial
exploitation. [M.S.] lacks informed decision making capacity and is
in need of assistance in the overall management of affairs and
monitoring of his executive functioning capacity.

Summarily, the evaluation of [M.S.] reflects the existence of
pronounced personal, psychological and cognitive/intellectual deficits
that augment his degree of susceptibility to undue influence. His poor
capacity to resist suggestions would adversely impact upon his
accurate perception of events and circumstances and render an
informed decision. His inability to navigate situations and
circumstances that require abstract and/or complex reasoning ability
precludes his acting in a knowing, intelligent and voluntary manner.

The verified petition further alleged that M.S.’s cognitive deficits have left

him “susceptible to exploitation and undue influence.” The petitioner attached

powers of attorney executed by M.S. in favor of any one of four family members

(the petitioner, M.S.’s brother, Gilberto Sarfaty; M.S.’s mother, a resident of Paris,

France, Jeannette Sarfaty; and M.S.’s two sisters: Susie Sarfaty, a resident of New
3
York City, and Lisette Sarfaty, a resident of Lima, Peru). The verified petition

alleged that these powers of attorney had been utilized by M.S.’s sisters and

mother to transfer M.S.’s shares in a family-controlled business from voting to

non-voting status, in breach of their fiduciary duty to M.S. Corporate documents

evidencing authority purportedly conferred by M.S. for corporate action were also

attached to the petition. The petition complied with the statutory requirements of

section 744.3201, Florida Statutes (2015).

The verified petition sought a plenary guardianship and the appointment of a

“professional guardian”—not the petitioner or other family member of M.S.—to

serve as plenary guardian of the person and property of M.S. In a matter of days

following the filing of the verified petition and those attachments, the mental

health division of the probate division of the Miami-Dade circuit court issued a

standard order (signed by the circuit judge) appointing three credentialed and

independent mental health professionals to serve as the examining committee for

M.S. as the “allegedly incapacitated person” or “AIP.” In that order, the court also

appointed an independent attorney to serve as counsel for M.S. and “to represent

the AIP in all proceedings involving the verified petition.”2 The order further

2In the event of an adjudication of incapacity, the court-appointed attorney for the
AIP was also directed to review the initial guardianship report and to represent the
ward during any objection to that report.
4
specified that the court-appointed attorney “may not hereafter serve as guardian,

nor as the guardian’s counsel.”

Private Counsel for M.S.

The attorneys for the petitioner/brother of M.S., Gilberto Sarfaty, and M.S.

himself, promptly notified M.S.’s mother, two sisters, and M.S.’s aides of the

commencement of the guardianship and the fact that the petitioner sought an

independent guardian for M.S. In less than ten days from the service of the circuit

court’s form order appointing the examining committee and independent, court-

appointed counsel, the other family members retained counsel and appeared in the

case.

Of particular note, and as detailed in the attached time line, attorneys and

their law firm purporting to be appearing on behalf of M.S.—not M.S.’s mother or

sisters, but M.S., the allegedly incapacitated person himself—immediately

appeared in the case and moved to be substituted for the independent, court-

appointed attorney representing M.S.3 That motion was signed by M.S. himself.

The independent, court-appointed attorney for M.S. was concerned that,

though M.S. “may substitute her or his own attorney for the attorney appointed by

the court, this is not an absolute right and certain factors must be taken into
3 M.S.’s motion for substitution of counsel was filed on December 18, 2015—15

days after the petition was filed, and only seven days after the circuit court’s order
appointing the examining committee and court-appointed attorney was served by
mail.

5
consideration when allowing this substitution.”4 (Emphasis in the original). The

court-appointed attorney expressed concern regarding M.S.’s capacity, based on

M.S.’s life-long medical history, the verified allegations in the petition, and the

pre-petition assessment report of Dr. Toomer attached to the petition. The

objections noted uncertainty as to who actually hired private counsel for M.S., and

suggested that the court assure that private counsel for M.S. “is a disinterested

third party, with [M.S.’s] best interests in mind.” The court-appointed attorney did

not, however, press for an evidentiary hearing on her objections.

The day after the objections were filed, the circuit court entered two orders.

The first found that M.S. is not indigent and ordered reassignment from the Office

of Criminal Conflict and Civil Regional Counsel “as soon as we have resolved the

issue of who should be the successor court-appointed attorney,” and a second order

granted private counsel’s emergency petition to be substituted in place of the

initially-appointed independent counsel.

Stipulation for Continuance; M.S.’s Motions to Strike and to Dismiss

The circuit court’s standard order of December 10, 2015 (served by mail the

following day), scheduled the adjudicatory hearing on the petition for January 13,

2016. But on January 6, 2016, counsel for all of the interested persons and for

4 § 744.331, Fla. Stat. (2016). See also Holmes v. Burchett, 766 So. 2d 387, 388
(Fla. 2d DCA 2000) (AIP presumed competent to contract and retain counsel of his
or her choice unless and until it has been proven, based on clear and convincing
evidence, that the AIP is incapacitated with respect to the exercise of that right).
6
M.S. stipulated to a motion for continuance of that hearing because of scheduling

conflicts and ongoing settlement negotiations. The court granted the joint motion

and directed counsel to coordinate a later date for the hearing on the petition to

determine incapacity.

As of January 7, 2016, M.S. was represented by his private counsel, and the

original, court-appointed attorney terminated her services on behalf of M.S.

On January 13, 2016, M.S.’s private counsel filed a declaration that the petition for

a determination of incapacity was adversary. Although M.S.’s court-appointed

counsel had begun seeking information from the petitioner’s counsel regarding

access to M.S. in December, and although M.S.’s mother and M.S.’s private

counsel were present during a December 29, 2015, interview with Dr. Echavarria

of the Examining Committee, M.S.’s private counsel next moved to dismiss the

petition for procedural reasons. The motion to dismiss, filed January 20, 2016,

asserted that M.S. “has been consistently denied the due process and procedures

required in these proceedings,” that the petition is “fatally flawed,” and that the

relief requested is “barred by the doctrines of unclean hands and estoppel.”

The following day, M.S.’s private counsel filed a notice to require in person

testimony of the three examining committee members, and a motion to strike all

three examining committee member reports (each of which had recommended a

7
limited guardianship based on M.S.’s inability to make informed decisions

regarding a majority of the 13 categories assessed in the report).

Hearing and Dismissal Without Leave to Amend

Private counsel for M.S. amended the motion to dismiss5 on April 26, 2016,

and the motion was heard a week later. The hearing was non-evidentiary, and the

thrust of the movants’ objections were (a) the alleged failure of court-appointed

counsel to read the petition and form notice to M.S., and (b) the fact that the

examining committee members did not file their reports within the fifteen day

period allowed by the form notice and section 744.331(3)(e), Florida Statutes

(2016). Private counsel for M.S. also addressed the alleged merits of the petition,

moving beyond the four corners of the petition and its attachments. During that

hearing, as here, private counsel for M.S. argued that less restrictive alternatives to

guardianship should be considered—including a guardian advocate under section

393.12, Florida Statutes (2016), 6 and a petition under section 709.2116, Florida

5 The amended motion to dismiss, like the original, was joined by M.S.’s Mother
and both sisters.
6 The day after the notice of appeal was filed in this case, private counsel for
M.S., joined by counsel for family members other than the petitioner in the present
case, executed a separate petition for the appointment of one of those family
members as a limited guardian advocate for M.S. When the petitioner in the
present case (M.S.’s brother) sought leave to intervene in that case, M.S.’s counsel
opposed, and moved to strike, that motion. The trial court granted the motion and
has recognized Gilberto Sarfaty as an interested party.
8
Statutes (2016), for judicial relief regarding any alleged conflict of interest relating

to the execution of powers of attorney by M.S. or family members.

Counsel for the petitioner argued that M.S.’s private counsel had stepped

into the shoes of counsel for M.S., with the ability and duty to read the petition to

him, explain its consequences, and assist him with scheduling timely meetings

with the examining committee members so that their reports could be timely filed.7

The court determined, however, that the proceedings needed to begin anew and

that the petitioner would not be allowed to amend the petition. The court

expressed the well-intentioned hope that the family members might be reconciled

and avoid the expense of further proceedings, though recognizing that the

dismissal was “unusual.” The present appeal followed.

Analysis

Our standard of review for an order granting the dismissal of a petition

without leave to amend is de novo. We review the allegations within the four

corners of the petition and its attachments, assume them to be true, and construe all

reasonable inferences from those allegations in favor of the petitioner. Greene v.

Times Publ’g Co., 130 So. 3d 724, 728 (Fla. 3d DCA 2014); Lonestar Alt. Sol.,

7 As private counsel assuming the representation of M.S., it was counsel’s
professional obligation to help M.S. understand the petition so as to mount a
defense to the allegations in the petition (if that was M.S.’s informed decision). As
already noted, M.S. signed the motion to substitute private counsel, and private
counsel was present at each of the three assessment meetings between examining
committee members and M.S.
9
Inc. v. Leview-Boymelgreen Soleil Developers, LLC, 10 So. 3d 1169, 1172 (Fla.

3d DCA 2009).

The order of dismissal, and the oral ruling that amendment would not be

allowed, are grounded on (1) an alleged failure of due process; (2) the allegedly

untimely filing of the examining committee member reports; and (3) the objection

by the initial, court-appointed counsel to the appointment of M.S.’s private

counsel, alleged to have been prejudicial to M.S.8 While these arguments may

constitute defenses to the petition, they fail to establish the legal insufficiency of

the petition. They are also circular arguments because of the unusual procedural

developments in the case.

Within days of independent, court-appointed counsel’s receipt of the

standard order appointing her, M.S. had signed a paper prepared by his proposed,

private counsel asking that court-appointed counsel be discharged. This occurred

because counsel for the petitioner immediately (and properly) disseminated the

petition and its attachments electronically to M.S.’s family members. M.S., his

mother, and his two sisters then immediately hired four separate Miami law firms

to represent them.9 As soon as private counsel was substituted for court-appointed

8 All other motions, including M.S.’s motions to strike the examining committee
reports, were held to be moot in the order of dismissal.
9 According to the petition and its attached assessment by Dr. Toomer, M.S. only
has access to a small amount of money managed by his sister, who resides in New
York. “Finances are controlled and managed by family members.” The petition
10
counsel, the normal urgency in guardianship cases apparently diminished, because

all counsel stipulated to the continuance of the originally-set evidentiary hearing.

In light of this unusual record, M.S.’s reliance on strict adherence to the time

and notice requirements in section 744.331(3)(e) and in the circuit court’s standard

notice and order mailed December 11, 2015, is not persuasive; M.S.’s own counsel

and his family could have immediately asked the Court (but did not) to defer the

examining committee member assessments, or to expedite them. Instead, counsel

for M.S. made him available for the examining committee member examinations

and sat with M.S. as each professional assessed M.S. M.S. now complains of

actions not taken by the court-appointed attorney he petitioned to discharge, and

then purportedly not taken by his own private counsel.

We have identified no Florida case holding that the timing set forth in the

statute cannot be waived by an AIP or the AIP’s private counsel. Nor have we

identified a case holding that the timing set forth in the statute is so significant to

the process and parties that a petition must be dismissed, without leave to amend, if

the time requirements are not strictly fulfilled.10

alleged that M.S. owns assets exceeding millions of dollars but has no ability to
understand or manage the funds. M.S.’s ability to retain his private counsel would
seem to have required assistance from the very family members alleged in the
petition to have conflicts of interest in the use of powers of attorney presented to
M.S. for his execution.
10 It bears noting that the standard order appointing independent counsel and the

three examining committee professionals was served by mail on December 11th,
with the deadlines falling during the end-of-year holidays.
11
 Instead, M.S. and three family members persuaded the trial court months

later that substantial compliance with the statute and rule were insufficient, citing

such cases as In re Fey, 624 So. 2d 770 (Fla. 4th DCA 1993), and Borden v.

Guardianship of Borden-Moore, 8181 So. 2d 604 (Fla. 5th DCA 2002). Although

In re Fey holds that “compliance with section 744.331 and rule 5.550 is

mandatory,” 624 So. 2d at 772, the non-compliance in that case involved the

failure to appoint independent counsel for the AIP until “the commencement of the

final hearing,” “long past the pleadings and trial preparation stage.” Id. No such

failure occurred in the present case, in which the court’s initial order, mailed only

days after the petition was filed, appointed independent counsel and the members

of the examining committee. And no final hearing has begun, much less occurred,

in this case.

Similarly, in Borden, the AIP’s daughter (who had petitioned for a

determination that her mother was incapacitated) and the AIP’s court-appointed

independent attorney were not notified of a hearing on a motion by the AIP’s

husband. “The hearing was not recorded, no examining committee reports were

considered because the examining committee had not yet completed the required

examinations, and [the AIP’s] court-appointed attorney did not participate because

he was not notified of the hearing.” 818 So. 2d at 606. Nevertheless, at the

12
conclusion of that hearing, the trial court found that the AIP was competent and

dismissed the petition. Id.

Unsurprisingly, the Fifth District in Borden reversed the order of dismissal,

based on the lack of any notice to the petitioner and the AIP’s counsel. In doing

so, that court also found that the trial court should not have dismissed the facially

sufficient petition without considering examining committee reports and

conducting an adjudicatory hearing. These were the flagrant departures from the

mandatory requirements of section 744.331 in Borden. What occurred in the

present case—a few days of delay in the filing of the examining committee

member reports during the end-of-year holiday season, following a change in

counsel sought by the AIP himself—is entirely distinguishable.

The Dissent

Our dissenting colleague argues forcefully that the order below must be

affirmed because of “fundamental error” regarding the petition and the fact that the

initial, court-appointed attorney “completely ignored her duties as Elisor . . . .”

Dissent, slip op. at 25. A brief and specific response is appropriate.

No fundamental error occurred. What occurred is unique to the present case

and is not a feature of any of the statutes, rules, or cases relied upon by the

appellees and our colleague. That occurrence is that the court-appointed attorney

and elisor, Ms. Valdes, was served by mail on December 11, 2015, with the order

13
appointing her.11 Over a week before the deadline for her to read the petition to

M.S., Ms. Valdes had already been served with an emergency petition for her

substitution by M.S.’s current counsel, and the petition was signed by M.S.

himself. Surely the dissent and M.S.’s current counsel cannot be suggesting that

M.S. signed the motion for substitution without reading the copy of the notice

mailed to him, or another copy provided by his chosen private counsel, or having it

read to him by his personal counsel. As no evidentiary hearing has been held on

this point (or on any other issue in the case), the record does not establish that the

notice was not read to M.S. as provided by Florida Probate Rule 5.550(b)(2).

The attached time line demonstrates that Ms. Valdes sought information

from petitioner’s counsel regarding access to M.S. on December 26, 2015, which is

over a week after M.S.’s personal counsel had begun advising M.S. Ms. Valdes’s

time records, which are in the record, refer to an email and a letter from M.S.’s

personal counsel as early as December 18, 2015. Thereafter, (1) the court granted

the motion for substitution of counsel, and (2) M.S.’s private counsel, not Ms.

Valdes, attended the meetings with M.S. and each of the three members of the

examining committee, and (3) a scheduled adjudicatory hearing was continued by

11 That this is not a “lack of notice” case is further illustrated that the certificate of
service by mail by the Deputy Clerk also certifies that a copy of the order of
appointment and the petition itself were mailed to the petitioner (Gilberto Sarfaty),
M.S. himself, his family members indicated in the petition, all attorneys of record,
and each member of the examining committee on December 11, 2015.
14
agreement among counsel. Any error which occurred in moving the petition

toward an adjudicatory hearing was not a fundamental error (of the kind apparent

in the reported cases), but rather an invited error.

Turning next to the examining committee reports, apparently the appellees

and the dissent would allow dismissal of a petition without leave to amend if a

single examining committee report was filed a single day after the 15-day period

allowed in section 744.331 (3)(e). Such a draconian interpretation must be rejected

after considering the express purpose of the statute and rule—providing the AIP

and parties sufficient time before an adjudicatory hearing to understand and contest

the reports if that is considered appropriate. No case has held that missing the 15-

day period by a few days warrants dismissal of the petition without leave to

amend.

The dissent’s quotations from Fey and Borden have already been addressed

in this opinion—a broadly-written statement in Borden that “[c]ompliance with the

requirements of section 744.331 is mandatory and the trial court’s failure to adhere

to those requirements constitutes reversible error,” 818 So. 2d at 609, was not

referring to an AIP represented by his own counsel after the AIP signed a motion

and apparently authorized the filing of numerous pleadings, or to an AIP whose

counsel attended his meetings with all members of the court-appointed examining

committee (as occurred in the present case).

15
 Rather, Borden involved a petitioner who was given “no notice, reasonable

or otherwise, that dismissal of the incapacity proceedings would be considered by

the court” at a hearing, when: dismissal had not even been sought by an adverse

party; an attorney appeared on behalf of the AIP without obtaining an order of

substitution for the court-appointed attorney; no court reporter recorded the

proceedings; and the court dismissed the petition having never obtained the

examining committee’s report. Id. at 607-609. Those are the departures from the

statute and rules referred to by the Fifth District in Borden, not the fact that the

examining committee reports were a few days late, or that successor counsel for

the AIP criticized the court-appointed counsel’s failure to read the initial notice to

the AIP (following the delivery to the AIP of copies of both the petition and the

notice).

Another case cited by the dissent for the principle that proceedings to

determine competency must strictly comply with the statute, Rothman v. Rothman,

93 So. 3d 1052, 1054 (Fla. 4th DCA 2012), ordered dismissal of a guardianship

petition because two of three examining committee members concluded that the

AIP was not incapacitated. The trial court had granted the petition, despite the fact

that the statute requires dismissal of the petition if a majority of the examining

committee members conclude that the alleged AIP is not incapacitated. This is in

sharp contrast to the present case, in which all three of the independent examining

16
committee members concluded that M.S. could not make informed decisions in a

majority of categories assessed, such that a limited guardianship is appropriate.

And these three reports followed a similar evaluation by Dr. Toomer, discussed

earlier and detailed in a written report attached to the verified petition.

Similarly, the dissent’s citation to Adelman v. Elfenbein, 174 So. 3d 516,

518 (Fla. 4th DCA 2012), for propositions that the guardianship statutes must be

strictly construed and that failure to adhere to the requirements of section 744.331

constitutes fundamental error, must also be considered against the record in that

case. Adelman involved two separate petitions by a grand-niece for the

appointment of a plenary guardian for the petitioner’s great uncle. In the first, the

trial court dismissed the petition after determining that the AIP’s advance directive

documents “provided a less restrictive alternative to guardianship.” The

petitioner/grand-niece did not appeal those final orders.

“Several months later, the grand-niece filed a ‘petition to reopen’ the

guardianship,” and the trial court conducted a trial and appointed a professional

plenary guardian for the AIP. Id. at 517. The Fourth District found that the trial

court lacked jurisdiction to enter the order because the petition to reopen the case

“is not premised on any rule or statute, and Appellee cites no statutory authority to

reopen an incapacity proceeding where no guardianship was ordered.” Id. at 518.

17
No such lack of jurisdiction and complete absence of statutory authority is evident

in the record in the present case. The dissent’s reliance on Adelman is misplaced.

Finally, the dissent cites a case involving defects in personal service and due

process. The issue of the sufficiency of service in the present case is readily

resolved through an evidentiary hearing, if truly in doubt, rather than summary

dismissal without leave to amend. There is abundant evidence that the petition was

delivered to M.S. His counsel has not denied, in promptly appearing with the

consent of M.S. to defend his interests, that counsel discussed the verified

allegations in the petition with him. This is a far cry, in short, from a plaintiff’s

attempt to accomplish service by mailing the summons and complaint to a

corporate employee “at the private mailbox registered to the corporation” (versus

the registered homestead address in Florida of the corporate principals), in the case

cited by the dissent. McDaniel v. FirstBank Puerto Rico, 96 So. 3d 926, 929 (Fla.

2d DCA 2012).

Conclusion

The petition and its attachments are facially sufficient to allege that M.S. is

incapacitated. We thus reverse the trial court’s dismissal of the petition without

leave to amend,12 and remand with direction to permit the petitioner to amend the

12 M.S. has not answered the petition; his amended motion to dismiss, after
declaring the petition an adversary proceeding, is not a “responsive pleading” for
purposes of the petitioner’s “absolute right to amend the complaint before a
responsive pleading is served.” Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567
18
petition, should he choose, and to permit M.S. and the other co-respondents to

raise such defensive matters as each may consider appropriate.13 M.S.’s motions

to require in-person testimony of the examining committee members and to strike

the examining committee reports were dismissed as moot rather than heard and

determined; if renewed, those motions may be heard before the adjudicatory

hearing.

Reversed and remanded for further proceedings.

EMAS, J., concurs.

(Fla. 2005).
13 M.S., through his private counsel, is already deemed to have denied the
allegations within the petition. Fla. Prob. R. 5.550(b)(2).

19
 Timeline

December 3, 2015 Petition to determine incapacity filed by Gilberto Sarfaty
[Attachments: Psych. Assessment of M.S. as of June 1,
2015. 2014, 2015 Powers of Attorney and Peruvian
Corporate Documents]

December 10, 2015 Probate Division Mental Health Section standard notice
and order: appointing examining committee and court-
appointed attorney for M.S.; setting hearing for Jan. 13,
2016. Served by mail December 11, 2015.

December 16, 2015 Appearance of counsel for Jeannette Sarfaty

December 17, 2015 Appearance of counsel for Susy Sarfaty

December 18, 2015 Appearance of private counsel for M.S. and emergency
petition for substitution of court-appointed counsel,
signed by M.S. on Dec. 17, 2015

December 22, 2015 Appearance of Counsel for Lisette Sarfaty

December 26, 2015 Court-appointed counsel contacts petitioner’s counsel to
seek access to M.S.

December 29, 2015 Dr. Echavarria, Examining Committee Member, assesses
M.S. with M.S.'s mother (Jeannette Sarfaty) and private
counsel for M.S. present [Reports that M.S. is
developmentally disabled; recommends a limited
guardianship and concludes that M.S. cannot make
informed decisions re: contracts or assist in the defense
of suits against him]

20
January 5, 2016 Dr. Alvarez, Examining Committee Member, assesses
M.S. with M.S.'s mother (Jeannette Sarfaty) and private
counsel for M.S. present [Dr. Alvarez reports that M.S.
cannot discuss his finances and needs help managing his
finances, medical and legal matters; recommends a
limited guardianship and concludes that M.S. cannot
make informed decisions re: contracts or assist in the
defense of suits against him]

January 6, 2016 Court-appointed counsel files an objection to M.S.'s
private counsel's motion for substitution of counsel
[Noting Dr. Toomer’s psychological assessment and
M.S.’s inability to understand contractual and financial
matters; noting uncertainty as to who hired private
counsel]

January 7, 2016 Court finds M.S. is not indigent and orders reassignment
from Office of Criminal Conflict and Civil Regional
Counsel "as soon as we have resolved the issue of who
should be the successor court-appointed attorney"

January 7, 2016 Order granting private counsel's emergency petition to
be substituted in place of court-appointed counsel for
M.S.

January 8, 2016 Dr. Picuric, Examining Committee Member, assesses
M.S. with M.S.’s mother and private counsel for M.S.
present [Dr. Picuric reports that M.S. “is severely limited
in his ability to comprehend abstract and complex
concepts” and “[t]hese deficits render him vulnerable to
undue influence and financial exploitation;” recommends
a limited guardianship]

January 20, 2016 M.S.'s motion to dismiss the petition, filed by private
counsel

21
January 21, 2016 M.S.'s motion to strike all three examining committee
reports (filed by private counsel)

January 21, 2016 Notice that proceedings are adversary (filed by M.S.'s
private counsel)

January 21, 2016 Notice that M.S. requires in person testimony of
examining committee members

April 26, 2016 Amended motion to dismiss the petition (filed by M.S.'s
private counsel)

May 3, 2016 Hearing on the amended motion to dismiss

May 6, 2016 Order granting M.S.'s amended motion to dismiss

22
 Gilberto Sarfaty v. In Re: M.S.
Case No. 3D16-1419

ROTHENBERG, C.J. (dissenting).

Florida’s guardianship law establishes very specific and detailed

procedures which must be followed to determine incapacity, including but

not limited to the giving of notice, providing independent counsel, the

appointment of a committee to examine the alleged incapacitated person, and

the setting of the time limitations for the filing of the examining committee

reports. Because many of those requirements were not satisfied in this case,

the probate court correctly dismissed the guardianship petition without

prejudice for the filing of a new petition.

THE NOTICE REQUIREMENTS

With regard to notice to the alleged incapacitated person after a

petition to determine incapacity is filed, section 744.331, Florida Statutes

(2015), provides:

(1) NOTICE OF PETITION TO DETERMINE
INCAPACITY.—Notice of the filing of a petition to determine
incapacity and a petition for the appointment of a guardian if any
and copies of the petitions must be served on and read to the
alleged incapacitated person. The notice and copies of the
petitions must also be given to the attorney for the alleged
incapacitated person, and served upon all next of kin identified
in the petition. . . .

(bolded emphasis added).

23
 Florida Probate Rule 5.550(b)(2), entitled Petition to Determine

Incapacity, provides in relevant part:

Service on Alleged Incapacitated Person. The notice and a copy
of the petition to determine incapacity shall be personally
served by an elisor appointed by the court, who may be the
court appointed counsel for the alleged incapacitated person.
The elisor shall read the notice to the alleged incapacitated
person, but need not read the petition. A return of service
shall be filed by the elisor certifying that the notice and
petition have been served on and the notice read to the
alleged incapacitated person. No responsive pleading is
required and no default may be entered for failure to file a
responsive pleading. The allegations of the petition are deemed
denied.

(bolded emphasis added).

An “elisor” is a person appointed by the court to perform a specified duty.

Elisor, Black’s Law Dictionary (9th ed. 2009).

On December 3, 2015, Gilberto Sarfaty (“Gilberto”) filed a petition

seeking a determination that his forty-six year old brother, M.S., is

incapacitated and the appointment of a plenary guardian for M.S. The

petition alleges that M.S. is incapacitated due to “comprehension disabilities”

that have existed M.S.’s entire life. M.S. lives in Aventura, Florida; Gilberto

lives in Lima, Peru; M.S.’s mother lives in Paris, France; and M.S.’s sisters

live in New York City and Peru.

On December 9, 2015, the probate court issued a Notice and Order

which: (1) appointed a three member committee to examine M.S.; (2)

24
appointed a general magistrate to conduct hearings and make

recommendations to the probate court; (3) appointed Irama Valdes to

represent M.S. as M.S.’s attorney; and (4) appointed Ms. Valdes as the

Elisor. The Notice and Order specifically instructed Ms. Valdes to

personally serve M.S. with the Notice and the petition and, thereafter, to file

a return of service within fifteen days from the date of the Notice and Order

certifying that the Notice had been read to M.S.

The portions of the Notice and Order relevant to the appointments of

Ms. Valdes as M.S.’s attorney and as the Elisor provides as follows:

This cause having come before the Court on a petition to
(determine incapacity of) and/or (appoint a guardian for) the
above-named Respondent, the Court hereby NOTIFIES the
Petitioner, the Respondent (an alleged incapacitated person
[M.S.], the Respondent’s known next of kin, and all attorneys of
record that the following has been ADJUDGED:
. . . .

2. Court Appointed Attorney
Irama Valdes
19 W. Flagler St.
Miami, FL 33130

a member of the Florida Bar in good standing, whose
telephone number(s) is/are (305) 358-1771 hereby appointed
counsel to and will represent [M.S.] in all proceedings
involving the Petition to Determine Incapacity and
Appointment of Guardian, and, if there is an adjudication of
incapacity, said counsel shall review the initial guardianship
report and shall represent the Ward during any objection
thereto. The appointed counsel may not hereafter serve as
guardian, nor as the guardian’s counsel. This appointment

25
 may be terminated, per court order, if [M.S.] seeks to
substitute his or her own counsel for the counsel herein
appointed. Appointed counsel will be compensated for
services rendered to [M.S.] pursuant to Florida Law.

3. Service by Elisor

[M.S.’s] above-named court appointed attorney is also
appointed Elisor in this matter. The Elisor shall personally
serve this notice and the petition(s) filed herein on, and read
the notice to, [M.S.]. The Elisor shall file a return of service,
no later than fifteen (15) days from the date of this Order,
certifying that the notice and petition(s) have been served, and
that the notice has been read to, [M.S.].

(emphasis added in paragraph 3).

The Notice clearly appoints Ms. Valdes to serve in two different

capacities: (1) as appointed counsel to represent M.S. unless and until private

counsel is substituted to represent M.S.; and (2) as the Elisor, who is charged

with the responsibility to serve and read the Notice to M.S. and, thereafter, to

file a return of service no later than fifteen days from the date of the Notice,

certifying that the Elisor has served the petition and Notice on M.S. and that

she read the Notice to M.S. Ms. Valdes was thus required to file a return of

service by December 28, 2015.14

It is undisputed that Ms. Valdes completely ignored her duties as the

Elisor and the directives of the probate court’s Notice and Order, as well as

14The fifteen-day deadline was extended to December 28, 2015, due to the
Christmas holiday.

26
Florida Probate Rule 5.550(b)(2) and section 744.331(1). She did not serve

the petition or Notice on M.S.; read the Notice to M.S.; or file a return of

service in the probate court by December 28, 2015. In fact, she has not to this

day performed these court-ordered and statutory duties.

It is also undisputed that, although the probate court ultimately granted

M.S.’s motion for substitution of Ms. Valdes with privately retained counsel

to represent M.S. as his attorney, M.S. never sought, and the probate court

has never granted, a motion to discharge Ms. Valdes as the Elisor.

THE EXAMINING COMMITTEE REQUIREMENTS

As with the notice provisions already addressed, section 744.331(3)(e)

is written in mandatory language and states that “[e]ach member of the

examining committee must submit a report within 15 days after

appointment.” Additionally, the Notice and Order places a similar

requirement on each member of the examining committee:

At least five (5) days before the hearing, or within fifteen (15)
days of the date of this Order, whichever is earlier, a written
report that confirms [sic] to the requirements of section 744.331,
Florida Statutes, must be filed with the Clerk of this Court with
copies sent to [M.S.], the Petitioner, and all attorneys of record.

Again, it is undisputed that none of the committee member’s reports were

filed within the fifteen days mandated by the probate court’s Notice and

Order and section 744.331(3)(e).

27
 M.S.’S OBJECTIONS TO THESE PROCEDURAL DEFECTS

The record reflects that M.S. immediately and repeatedly objected to

the above procedural defects, alleged that his due process rights were

violated, and alleged that he was prejudiced. The record reflects the

following.

The petition to determine incapacity was filed by Gilberto on

December 3, 2015. On December 10, 2015, the probate court issued its

Notice and Order appointing Ms. Valdes as counsel for M.S.; appointing Ms.

Valdes as Elisor; appointing an examining committee; appointing a general

magistrate; setting the requirements for the service and notice to M.S.; setting

the time limitations related to the notice to M.S., the filing of the return of

service, and the filing of the committee members’ reports; and setting the

hearing date for January 13, 2016.

On December 18, 2015, M.S.’s privately retained counsel, Richard C.

Milstein and R. Dale Noll (collectively, “private counsel”), filed an

emergency petition for substitution of counsel, which was signed by Richard

Milstein and M.S. This petition specifically noted that although the petition

to determine incapacity had been filed on December 3, 2015, as of the filing

of the petition for substitution of counsel, M.S. had not been notified of the

name of his court-appointed counsel. On December 18, 2015, private

28
counsel also filed an emergency motion for authorization to review and copy

the court file.

On January 7, 2016, the probate court granted the petition for

substitution of counsel and the motion for authorization to review and copy

the court file. The court also entered an agreed order continuing the January

13, 2016 hearing on the petition to determine incapacity, which specified that

“[t]he continuance does not waive any rights that the alleged

incapacitated person or any interested person has with regard to any

objections or defenses to be raised in the proceedings.” (emphasis added).

On January 20, 2016, private counsel filed the following: (1) a motion

to dismiss the petition to determine incapacity, which will be addressed more

fully below; (2) a motion to strike the reports of the examining committee as

untimely filed; (3) a motion to strike the report of examining committee

member Neda Picuric because it was both untimely and the examination was

primarily conducted in English despite M.S. advising her that his primary

language is Spanish; and (4) a declaration that the proceedings are adversary.

The amended motion to dismiss the petition to determine incapacity

was premised, in part, on the failure of the Elisor to personally serve the

Notice and Order on M.S. and to file the requisite return of service; the

failure of appointed counsel to meet with M.S. to notify him of the

29
proceedings or to meet with M.S. prior to the filing of her objection to the

retention and substitution of private counsel selected by M.S.; and the failure

of the examining committee members to file their reports within the time

prescribed by section 744.331(3)(e) and the probate court’s Notice and Order.

The amended motion to dismiss argued that these requirements are

mandatory, and therefore, the failure of the Elisor, appointed counsel, and the

examining committee members to comply with these mandatory

requirements constituted fundamental error, denying M.S. of due process and

resulting in prejudice to him. The relevant paragraphs of the amended

motion to dismiss are as follows:

4. [M.S.] has been consistently denied the appropriate due
process and procedures required in these proceedings under
Chapter 744 of the Florida Statutes, the Florida Probate Rules,
and case authority. In addition, the Petition is fatally flawed and
the relief requested barred by the doctrines of unclean hands and
estoppel. As a result, the Petition must be dismissed.

5. Court-Appointed Counsel was appointed the Elisor and
required to personally serve the Notice and Order on [M.S.],
read the Notice and Order to [M.S.], and file a return of service
within fifteen days of the date of the Notice and Order. (Ex. 1,
¶3).

6. Court-Appointed Counsel failed to accomplish any of these required
tasks.

7. Court-Appointed Counsel met with [M.S.] for the first time on
January 7, 2016, the date of a hearing on [M.S.’s] Emergency
Motion for Substitution of Counsel, just minutes prior to the
hearing and after filing a pleading adverse to [M.S.] without his

30
permission. She spoke with [M.S.] briefly for the first time on
January 6, 2016 by telephone, although her billing records
demonstrate that she communicated with counsel for Petitioner
on more than one occasion.

8. The Court-Appointed Counsel filed an objection to the
retention of private counsel selected by [M.S.] that contained
within the pleading statements adverse to [M.S.]. The Court
entered an Order on January 7, 2016 authorizing the retention
of private counsel and discharging the Court-Appointed
Counsel.

9. [M.S.] is entitled to proper notice under Florida law and the
Florida Probate Rules, as are consistent with due process and
[M.S.’s] fundamental Constitutional rights. §744.331(1), Fla.
Stat. (2015); §744.33l(5)(a), Fla. Stat. (2015); In re Fey, 624
So.2d 770, 771-72 (Fla. 4th DCA 1993) (finding that failure to
follow the “very specific procedures” outlined in §744.331 of
the Florida Statutes created a violation of the alleged
incapacitated person’s due process and equal protection of the
laws); Fla. Prob. R. 5.550(b)(2).

10. The Court-Appointed Counsel also failed to file a notice of
adversary proceeding within the timeframe allotted under the
Notice and Order. (See Notice and Order, ¶4 (providing that any
party contemplating that the proceedings will be adversarial
must file a notice, pursuant to Rule 5.025 of the Florida Probate
Rules within five (5) days of receipt of the Notice and Order).

11. As of the date of the filing of the initial Motion to Dismiss,
January 13, 2016, more than thirty days after the Petition was
filed, [M.S.] had not received proper service of notice for these
proceedings, nor a certification that notice was served upon him
as ordered by this Court.

12. As a result of these irregularities and failure to follow the
dictates of Florida Statutes, Florida Rules, and Florida case
authority, the Petition must be dismissed.

31
 13. The examining committee members had 15 days from
appointment to examine [M.S.] and submit their individual
reports with the Court. “Each member of the examining
committee must submit a report within 15 days after
appointment.” §744.331(3)(e), Fla. Stat. (2016) (emphasis
added).

14. Taking into consideration that the fifteenth day following
their appointment, December 25, 2015, was a legal holiday, the
examining committee reports were to have been submitted to the
Court by December 28, 2015, the first business day following
the legal holiday.15

15. One of the examining committee members, Dr. David
Echavarria, met with [M.S.] on December 29, 2015 and
submitted his report on that same day—one day after the 15th
day cutoff period. As of the date of filing the initial Motion to
Dismiss, January 13, 2016, that was the only examining
committee report filed with the Court and received by [M.S.].

16. Dr. Manuel E. Alvarez met with [M.S.] on January 5, 2016,
twenty-six (26) days after appointment and certainly not within
the timeframe required. The report of Dr. Alvarez was first
received by the Court on January 11, 2016, a date still beyond
any timeframe permissible in this proceeding.

17. Dr. Neda Picuric had her first appointment to meet with
[M.S.] on January 7, 2016, but rescheduled the time to the
following day, January 8, twenty-nine (29) days after her
15 The Notice and Order also indicates that the examining committee reports

must be filed “at least five days before the hearing [on the Petition], or
within fifteen (15) days of the date of this order, whichever is earlier.” (Ex.
1, ¶1 (emphasis added)). Although the language makes clear that the deadline
of December 28 is the cutoff for the filing of the examination committee
reports, a very liberal interpretation would provide that the reports might
have been able to be filed by January 8, 2016—within five days of the
hearing set in the Notice and Order for January 13, although his was not the
earlier of the times specified in the Notice and Order. Only one of the
examining committee reports met that hypothetical deadline.

32
 appointment. The report of Dr. Picuric was first received by the
Court on January 13, 2016, a date still beyond any timeframe
permissible in this proceeding.

18. Because the examining committee reports are all untimely,
the procedural requirements of §744.331 of the Florida Statutes
(2015) have not been met and the Petition should be dismissed.

The amended motion to dismiss the petition to determine incapacity

argued that the failure to comply with section 744.331 constituted

fundamental error and provided the relevant statutory and case law authority

in support of this argument. As additional grounds for dismissal, the motion

claimed that the petition to determine incapacity, which was issued under

penalty of perjury, was “riddled with factual errors” requiring dismissal. For

example, the petition to determine incapacity attests that English is M.S.’s

primary language when the “Petitioner knows fully well that [M.S.’s]

primary language is Spanish.” This allegation is relevant, as it is alleged in

the separate motion to strike the examining committee report of Neda Picuric,

filed on the same date, that Ms. Picuric conducted the bulk of her

examination of M.S. in English despite M.S. clearly indicating to Ms. Picuric

that Spanish is his primary language.

The record thus reflects that the grounds raised in the appeal were

timely and properly raised and considered below.

DISMISSAL OF THE PETITION TO DETERMINE INCAPACITY

33
 After conducting a properly noticed and fully litigated hearing on

M.S.’s amended motion to dismiss the petition to determine incapacity, the

probate court issued an order granting the motion. The hearing transcript

reflects and counsel for M.S. properly conceded at oral argument before this

Court that, although the probate court denied Gilberto’s motion for leave to

amend the petition to determine incapacity, the dismissal of the petition to

determine incapacity was without prejudice to file a new action in the event

the parties are unable to reach a settlement of the issues.

The probate court’s order dismissing the petition to determine

incapacity was based on the following three stated grounds:

A. These proceedings have failed to satisfy [M.S.’s] due process
rights or to comply with the procedural requirements of
§744.331, Florida Statutes.
B. The reports filed by the examining committee members were
not filed within the time prescribed by §744.331 of the
Florida Statutes or the Notice and Order issued by this Court
on Court on [sic] December 10, 2015.
C. The court-appointed counsel, prior to being substituted by
private counsel for [M.S.], made arguments in a filing with
this Court and in a prior hearing that were against the
interests of [M.S.’s] and were prejudicial to [M.S.], which
statements were objected to by private counsel for [M.S.].

As all three grounds are supported by the record and Florida law, the order

must be affirmed.

It is undisputed that Ms. Valdes, as the court appointed Elisor, failed to

comply with section 744.331(1), Florida Probate Rule 5.550(b)(2), and the

34
probate court’s Notice and Order. She did not meet with, serve, or read the

Notice and Order to M.S., or file a return of service within fifteen days

certifying that she had complied with these directives. Although Ms. Valdes

was appointed as Elisor on December 10, 2015, the first time she met with

M.S. was on January 7, briefly and just moments prior to the scheduled

hearing on M.S.’s motion for substitution of counsel. During this brief

contact, Ms. Valdes did not attempt to serve or provide M.S. with the

requisite notice. The record suggests that this brief contact was made in Ms.

Valdes’ capacity as M.S.’s appointed counsel and was related to the motion

for substitution of counsel.

It is also undisputed that the reports were untimely filed in violation of

section 744.331(3)(e) and the probate court’s Notice and Order. Thus, the

first two grounds found by the probate court in its order granting the

amended motion to dismiss are clearly supported by the record. Although

not necessary for affirmance of the probate court’s order, the record also

supports the third finding—that prior to the substitution of private counsel,

the court appointed counsel (Ms. Valdes) made arguments in a court filing

that were against M.S.’s interests and prejudicial to M.S. Based on these

findings, the probate court declined to address the various other objections

levied by M.S.

35
 LEGAL ANALYSIS

The only remaining issue is whether the probate court erred by

dismissing the petition to determine incapacity on the above stated and

proved grounds for dismissal. The Legislature has made its intent clear in

section 744.1012, which provides as follows:

The Legislature finds that adjudicating a person totally
incapacitated and in need of a guardian deprives such person of
all her or his civil and legal rights and that such deprivation may
be unnecessary. The Legislature further finds that it is desirable
to make available the least restrictive form of guardianship to
assist persons who are only partially incapable of caring for their
needs. Recognizing that every individual has unique needs and
differing abilities, the Legislature declares that it is the purpose
of this act to promote the public welfare by establishing a system
that permits incapacitated persons to participate as fully as
possible in all decisions affecting them; that assists such
persons in meeting the essential requirements for their physical
health and safety, in protecting their rights, in managing their
financial resources, and in developing or regaining their abilities
to the maximum extent possible; and that accomplishes these
objectives through providing, in each case, the form of
assistance that least interferes with the legal capacity of a person
to act in her or his own behalf. This act shall be liberally
construed to accomplish this purpose.

(emphasis added)

In addition to its stated intent to allow incapacitated persons to

participate as fully as possible and to interfere as little as possible with the

legal capacity of an alleged incapacitated person, section 744.3201, Florida

Statutes (2015), which establishes the petition requirements, and section

36
744.331, which establishes the procedures for determining incapacity, both

use mandatory terms such as “must” and “shall.” For example, section

744.3201(2) states that “[t]he petition must be verified and must” include

specific identification information of the alleged incapacitated person, the

factual information being relied on to believe the person is incapacitated, and

the primary language of the alleged incapacitated person, among other things.

(emphasis added).

Nearly every provision in section 744.331 contains mandatory

language. Relevant to this appeal are the following provisions:

(1) NOTICE OF PETITION TO DETERMINE
INCAPACITY.—Notice of the filing of a petition to determine
incapacity and a petition for the appointment of a guardian if any
and copies of the petitions must be served on and read to the
alleged incapacitated person. The notice and copies of the
petitions must also be given to the attorney for the alleged
incapacitated person, and served upon all next of kin identified
in the petition. The notice must state the time and place of the
hearing to inquire into the capacity of the alleged incapacitated
person and that an attorney has been appointed to represent the
person and that, if she or he is determined to be incapable of
exercising certain rights, a guardian will be appointed to
exercise those rights on her or his behalf.
....

(3) EXAMINING COMMITTEE.—
(a) Within 5 days after a petition for determination of incapacity
has been filed, the court shall appoint an examining committee
consisting of three members. One member must be a
psychiatrist or other physician. . . . Members of the examining
committee must be able to communicate, either directly or
through an interpreter, in the language that the alleged

37
 incapacitated person speaks or to communicate in a medium
understandable to the alleged incapacitated person if she or he is
able to communicate. The clerk of the court shall send notice of
the appointment to each person appointed no later than 3 days
after the court’s appointment.
....

(e) Each member of the examining committee shall examine the
person. Each examining committee member must determine the
alleged incapacitated person’s ability to exercise those rights
specified in s. 744.3215. . . . Each member of the examining
committee must submit a report within 15 days after
appointment.
....
(h) A copy of each committee member’s report must be served
on the petitioner and on the attorney for the alleged
incapacitated person within 3 days after the report is filed and at
least 5 days before the hearing on the petition.

(words “shall” and “must” emphasized).

Rule 5.550 also contains mandatory language:

(a) Contents. The petition to determine incapacity shall be
verified by the petitioner and shall state:
....

(b) Notice.

(1) Contents. The notice of filing the petition to determine
incapacity shall state:
....

(2) Service on Alleged Incapacitated Person. The notice and a
copy of the petition to determine incapacity shall be personally
served by an elisor appointed by the court, who may be the court
appointed counsel for the alleged incapacitated person. The
elisor shall read the notice to the alleged incapacitated person,
but need not read the petition. A return of service shall be filed
by the elisor certifying that the notice and petition have been

38
 served on and the notice read to the alleged incapacitated person.
No responsive pleading is required and no default may be
entered for failure to file a responsive pleading. The allegations
of the petition are deemed denied.
(3) Service on Others. A copy of the petition and the notice
shall also be served on counsel for the alleged incapacitated
person, and on all next of kin.

(words “shall” emphasized).

The probate court’s Notice and Order uses mandatory language as well.

The examining committee shall determine [M.S.’s] ability to
exercise the rights the Petitioner seeks to have removed. The
committee is therefore required to secure [M.S.’s] presence and
conduct a comprehensive examination that will enable it to
thoroughly ascertain [M.S’s] abilities. Accordingly, the
committee shall have access to, and may consider, [M.S.’s]
previous examinations, including but not limited to, habilitation
plans, school records, psychological and psychosocial reports
voluntarily offered for use by [M.S.]. At least five (5) days
before the hearing, or within fifteen (15) days of the date of this
Order, whichever is earlier, a written report that confirms to the
requirements of section 744.331, Florida Statutes, must be filed
with the Clerk of this Court with copies sent to [M.S.], the
Petitioner, and all attorneys of record. Absent a declaration of
adversary proceedings pursuant to paragraph four (4) of this
order, the Court shall consider the examining committee
members’ written reports when making a determination of
incapacity. If the Court finds [M.S.] is incapable of exercising
certain rights, a guardian may be appointed.
....

(3) Service by Elisor

[M.S.’s] above-named court appointed attorney is also appointed
Elisor in this matter. The Elisor shall personally serve this
notice and the petition(s) filed herein on, and read the notice to,
[M.S.]. The Elisor shall file a return of service, no later than
fifteen (15) days from the date of this Order, certifying that the

39
 notice and petition(s) have been served, and that the notice has
been read to, [M.S.].

(words “shall,” “must,” and “required” emphasized).

Despite this mandatory language, the majority contends, without

specifically stating so, that the requirements of section 744.331 and rule

5.550 are not really mandatory and that because M.S. later became aware that

a petition to determine his capacity had been filed, that somehow obviated

the clear mandate of the above statute and rule which require personal

service of the petition upon M.S. by the elisor who must actually read the

petition to him and file a return of service with the probate court verifying

that personal service was effectuated. But that is not the law either in probate

court or any court. See McDaniel v. FirstBank Puerto Rico, 96 So. 3d 926,

929 (Fla. 2d DCA 2012) (holding that “actual knowledge of a suit will not

cure insufficient service of process . . . [b]ecause of the fundamental

constitutional implications of service of process, ‘statutes governing service

of process are to be strictly construed and enforced.’”) (quoting Shurman v.

Atl. Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001)).

A review of the case law addressing section 744.331 and rule 5.550

reflects that the appellate courts have concluded that compliance with the

statute and the rule is mandatory. In In re Fey, 624 So. 2d 770 (Fla. 4th DCA

40
1993), the Fourth District Court of Appeal noted both that the legislative

intent and Florida’s guardianship law “sets forth very specific procedures

which shall be followed to determine incapacity, including but not limited to

the giving of notice, providing independent counsel, appointing an examining

committee, [and] submitting a committee report.” Id. at 771-72. The In re

Fey court concluded that the language of section 744.331 and rule 5.550 was

clear and that compliance was mandatory. Id. at 772.

In Rothman v. Rothman, 93 So. 3d 1052 (Fla. 4th DCA 2012), the

Fourth District Court of Appeal granted a petition for a writ of mandamus

filed by an alleged incapacitated person to require the trial court to dismiss a

petition to determine his capacity. In granting the writ, the Fourth District

relied on its previous holding in In re Keene, 343 So. 2d 916, 917 (Fla. 4th

DCA 1977), that “proceedings to determine the competency of a person are

generally controlled by statute and where a statute prescribes a certain

method of proceeding to make that determination, that statute must be

strictly followed.” Id. at 1054 (emphasis added). The portion of section

744.331 at issue in Rothman was subsection (4) which provides that, “if 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.” Because the Fourth District concluded that the statute

41
must be strictly followed, and two of the examining committee members had

concluded that the alleged incapacitated person was not incapacitated, the

Fourth District ordered that the petition to determine incapacity be dismissed.

The Fifth District has also found that “[c]ompliance with the

requirements of section 744.331 is mandatory and the trial court’s

failure to adhere to those requirements constitutes reversible error.”

Borden v. Guardianship of Borden-Moore, 818 So. 2d 604, 609 (Fla. 5th

DCA 2002) (emphasis added); see also Adelman v. Elfenbein, 174 So. 3d

516, 518 (Fla. 4th DCA 2012) (holding that “[t]he statutes governing the

adjudication of incapacity and the appointment of a guardian for an

incapacitated person are to be strictly construed” and “compliance with the

requirements of section 744.331, Florida Statutes, is mandatory and failure to

adhere to those requirements constitutes ‘error of fundamental proportions’”)

(internal citations omitted).

The majority further concludes that to require compliance with the

strict mandates of section 744.331 and rule 5.550 is “draconian.” However,

the majority’s displeasure with the mandatory language and requirements is

not grounds to ignore them. Any changes to the mandatory language

contained in section 744.331 and rule 5.550 must come from the Legislature,

not the Bench.

42
 CONCLUSION

The language of section 744.331, rule 5.550, and the probate court’s

Notice and Order is clear, unambiguous, and mandatory—and for good

cause. A determination of incapacity may result in the loss of a person’s

legal rights and the freedom to make basic life choices, such as financial

decisions.

The probate court, therefore, correctly determined that if it allowed the

proceedings to proceed “the court would be affecting the due process rights

of [M.S.]. They’ve already been put on a rough path by what happened with

the court appointed attorney who made disclosures that were objected to.”

Therefore, the trial court correctly concluded: “So I think that if we have a

petition to determine capacity, we need to start over.” As the Fourth District

aptly noted: “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.”

Adelman, 174 So. 3d at 518-19 (quoting In re McDonnell, 266 So. 2d 87, 88

(Fla. 4th DCA 1972)).

Accordingly, I cannot agree with an opinion that ignores clear and

unambiguous mandatory language and concludes that simply because the

petition was facially sufficient, strict compliance with these mandatory

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directives is not required. I also do not agree that an amendment of a

“facially sufficient” petition can cure the procedural infirmities in this case.

M.S. was entitled to notice prior to the proceedings that ensued. Timely

notice potentially could have protected M.S. from the prejudice he has

alleged.

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