What Is A Florida Guardianship Examining Committee?

An adult guardian is someone appointed to exercise decision-making authority for an adult who is physically or mentally incapacitated. Guardianship is always a legal measure of last resort. A judge must consider any other available and less-restrictive option before appointing a guardian.

To help safeguard the process, a Florida court will first appoint a body known as an “examining committee” to help determine whether the subject of a guardianship petition is, in fact, incapacitated. This committee must be appointed within 5 days of the court receiving a guardianship petition.

The examining committee itself consists of three members, who are qualified as follows:

• One member must be a psychiatrist or another physician.
• The other two members must be a “psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker,” or any other professional whose expertise might be useful in assisting the court.
• At least one member must have “knowledge of the type of incapacity alleged” in the petition for guardianship.
• Except for “good cause,” none of the committee members should be the subject’s regular doctor; however, the committee may consult with a treating physician if available.
• The committee members cannot be “related to or associated with” each other, the subject of the guardianship petition, or any other party or attorney involved in the case.
• If the subject does not speak English, the committee must be able to communicate with the subject in their native language, either directly or with the assistance of an interpreter.

How the Examining Committee Works

Each of the three examining committee members must personally examine the subject of the guardianship petition. The committee members may also review the subject’s history, including any medical and school records. Florida law is quite clear that the committee needs to perform a comprehensive examination and file a written report with the court. A “comprehensive” examination, includes all of the following:

• A physical examination;
• A mental health examination; and
• A functional assessment.

As the Florida Fourth District Court of Appeals explained in a 2018 opinion, Cook v. Cook, the law does not require all three committee members to conduct three separate comprehensive examinations. But at least one member must conduct all three necessary elements of the comprehensive examination. For example, in the Cook case, none of the committee members performed a physical examination of the subject. The petition for guardianship was based on the subject’s alleged mental incapacity; nevertheless, the Court said a physical examination was still necessary to reveal any possible “physiological reasons” for the subject’s behaviors. Consequently, the Court reversed the trial court’s decision to appoint a guardian, as that decision was based on incomplete information.

Speak with a Florida Guardianship Lawyer Today

If you are involved in a guardianship proceeding, it is important that you work with an attorney experienced in Florida’s laws and regulations governing this subject. To speak with a qualified Pompano Beach guardianship litigation attorney today, contact the offices of Mark R. Manceri, P.A.

Sources:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/Sections/0744.331.html

scholar.google.com/scholar_case?case=3246888386344737467