Florida Guardianship Examining Committee: What must the reports include?

Florida Guardianship Examining Committee: What must the reports include?

In a Florida Guardianship, what must be included in the Florida Guardianship Examining Committee Members’ reports? This September, the District Court of Appeal for the Fourth District of Florida examined the requirements of Examining Committee Members’ reports in Cook v. Cook. The Florida Guardianship Process is a legal proceeding in which the Court determines whether an individual, a potential Ward, has the required mental capacity to manage his or her own affairs. The three-person examining committee must examine the potential Ward and advise the Court if a guardianship is needed. A Guardianship is established after a court decides a potential Ward does not have the requisite mental ability. In a Guardianship, an adult is given the authority to manage the affairs of the Ward.

When a Court determines an individual does not have the requisite mental capacity to manage their affairs, certain rights are taken away. In most instances, more rights are taken away than when convicted of a felony. Due to the significance of taking away an individual’s rights, the Florida legislature has laid out specific requirements that must be strictly followed.

The Court in Cook v. Cook described what must be included in the Examining Committee Members’ reports as follows:

We find that the plain language of section 744.331 requires, at a minimum:

  1. An examination by each member of the committee;
  2. That the examination must include a comprehensive examination; and
  3. That the comprehensive examination must include, if indicated, a physical exam, a mental health exam, and a functional assessment.

However, three separate comprehensive examinations are not required, and a different examining committee member may conduct each part. If the examining committee is unable to complete an element of the comprehensive examination, they must indicate why in their report.

In Cook, the Court found the examining committee did not perform a physical examination of the potential Ward. An individual’s physical condition can affect their mental state. Thus, the physical examination is an essential part of the comprehensive examination. The examining committee members also failed to explain the lack of a physical exam.

The Court further declared a proper mental evaluation was not performed. The type of mental evaluation necessary is case specific. In Cook, the only form of mental assessment performed was a Mini-Mental State Examination (MMSE-2), which is the simplest mental evaluation. The examining committee member who performed the MMSE-2 stated further mental evaluation is needed as the MMSE-2 failed to show mental impairment. In certain instances, the MMSE-2 is sufficient. However, in situations such as in Cook where an examining committee member believes further evaluation might be needed, additional evaluation should be performed before an individual’s rights are taken away.

Examining Committee Member’s reports are a vital part of the Florida Guardianship Process. If you believe you or your loved one were placed under a Florida Guardianship without what must be included in the Examining Committee Members’ reports, contact the Law Office of David M. Goldman, PLLC. An experienced Jacksonville Guardianship Lawyer is available to speak with you.




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