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232 So.3d 1074District Court of Appeal of Florida,

Third District.

Gilberto SARFATY, Appellant,v.

In re: M.S., Appellee.

No. 3D16–1419|

Opinion filed November 1, 2017

SynopsisBackground: Petitioner filed a petition todetermine the incapacity of his adult brother,which also sought to establish a plenaryguardianship. The Circuit Court for Miami–Dade County, No. 15–6691, Celeste HardeeMuir, J., dismissed the petition. Petitionerappealed.

[Holding:] The District Court of Appeal,Salter, J., held that dismissal of petitionto determine the incapacity of petitioner'sadult brother and implement a plenaryguardianship was not warranted due to thealleged failure of court-appointed counsel toread the petition and form notice to brotherand the fact that the examining committeemembers did not file their reports within the15 day period allowed by the form notice andstatute.

Reversed and remanded.

Rothenberg, C.J., filed a dissenting opinion.

West Headnotes (3)

[1] Appeal and ErrorDe novo review

The District Court of Appeal'sstandard of review for an ordergranting the dismissal of a petitionwithout leave to amend is de novo.

Cases that cite this headnote

[2] Appeal and ErrorFailure to state claim, and

dismissal therefor

On review of order grantingdismissal of petition without leaveto amend, the District Court ofAppeals reviews the allegationswithin the four corners of thepetition and its attachments,assume them to be true, andconstrue all reasonable inferencesfrom those allegations in favor ofthe petitioner.

Cases that cite this headnote

[3] Mental HealthDismissal of proceedings

Dismissal of petition to determinethe incapacity of petitioner's adultbrother and implement a plenaryguardianship was not warranteddue to the alleged failure ofcourt-appointed counsel to readthe petition and form notice tobrother and the fact that the

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examining committee members didnot file their reports within the15 day period allowed by theform notice and statute, wherethe petition and its attachmentswere facially sufficient to allegethat brother was incapacitated andhad been his entire life, the delayin filing the examining committeemember reports was reasonable asit was the end-of-the-year holidayseason following a change incounsel sought by brother, therecord did not establish that thenotice was not read to brother,and the replacement of court-appointed counsel with privatecounsel diminished the normalurgency in guardianship cases. Fla.Stat. Ann. § 744.331(3)(e); Fla.Probate Rule 5.550(b)(2).

Cases that cite this headnote

An Appeal from the Circuit Court forMiami–Dade County, Celeste Hardee Muir,Judge. Lower Tribunal No. 15–6691

Attorneys and Law Firms

Ross & Girten, and Lauri Waldman Rossand Theresa L. Girten; Miami, DunwodyWhite & Landon, P.A., and Jeremy P.Leathe; Coral Gables, Markowitz, Ringel,Trusty & Hartog, P.A., and JoshuaRosenberg and Candis Trusty, Miami, forappellant.

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

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

ON MOTION FOR REHEARINGOR CLARIFICATION

SALTER, J.

*1075 We grant in part the appellee'smotion for rehearing or clarification,withdraw our opinion issued May 10, 2017,and substitute the following opinion in itsplace.

Gilberto Sarfaty appeals the dismissal(without leave to amend) of his petition todetermine incapacity of his adult brother,M.S. We reverse the order of dismissal andremand the guardianship case to the circuitcourt for further proceedings.

The Petition and Psychological AssessmentReport Attached to the PetitionThe verified petition alleged that 46–year-old M.S. is incapacitated and hasbeen incapacitated his entire life. Thepetition attached a psychological assessmentof M.S. prepared by a South Florida

consulting psychologist 1 prepared sixmonths before the petition was filed.The assessment was based on personalclinical interviews of M.S., an interviewof the petitioner, and cognitive evaluationtests. The assessment included background

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information that M.S. was diagnosedwith intellectual disability secondary toneurocognitive deficits as a child in his nativePeru. M.S. attended specialized trainingprograms in Massachusetts and NewHaven, Connecticut, for the development ofindependent living and work skills.

1 Dr. Toomer, a Ph.D. psychologist and diplomate ofthe American Board of Professional Psychology.

The verified petition and attachedassessment report stated that M.S. lives ina condominium in Aventura and receivesassistance from a Peruvian aide and herhusband with activities such as shopping,participating in a support group for outingssuch as movies, and keeping appointments.The psychologist reported that M.S.'sexecutive functioning “requires ongoingfunctional support,” and that his sister inNew York City manages M.S.'s access tomoney. The assessment report further stated:

Given these deficits, [M.S.] will requiresupervision in terms of managing hisaffairs, including health, finance, self-care and any business decisions. Whenquestioned regarding his role in familybusiness affairs, [M.S.] had no answerand indicated that he did not know.[M.S.] is unable to comprehend issuesrelated to assets and liabilities, corporatestructure and organization, division ofshares, power of attorney, voting rights,etc., and other issues related to financialmanagement. This deficit places him atrisk for financial exploitation. [M.S.] lacksinformed decision making capacity andis in need of assistance in the overallmanagement of affairs and monitoring ofhis executive functioning capacity.

Summarily, the evaluation of [M.S.]reflects the existence of pronouncedpersonal, psychological and cognitive/intellectual deficits that augment hisdegree of susceptibility to undue influence.His poor capacity to resist suggestionswould adversely impact upon his accurateperception of events and circumstancesand render an informed decision. Hisinability to navigate situations andcircumstances that require abstract and/or complex reasoning ability precludeshis acting in a knowing, intelligent andvoluntary manner.

*1076 The verified petition further allegedthat M.S.'s cognitive deficits have lefthim “susceptible to exploitation and undueinfluence.” The petitioner attached powersof attorney executed by M.S. in favorof any one of four family members (thepetitioner, 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 York City,and Lisette Sarfaty, a resident of Lima,Peru). The verified petition alleged thatthese powers of attorney had been utilizedby M.S.'s sisters and mother to transferM.S.'s shares in a family-controlled businessfrom voting to non-voting status, in breachof their fiduciary duty to M.S. Corporatedocuments evidencing authority purportedlyconferred by M.S. for corporate action werealso attached to the petition. The petitioncomplied with the statutory requirements ofsection 744.3201, Florida Statutes (2015).

The verified petition sought a plenaryguardianship and the appointment of a

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“professional guardian”—not the petitioneror other family member of M.S.—toserve as plenary guardian of the personand property of M.S. In a matter ofdays following the filing of the verifiedpetition and those attachments, the mentalhealth division of the probate divisionof the Miami–Dade circuit court issueda standard order (signed by the circuitjudge) appointing three credentialed andindependent mental health professionalsto serve as the examining committee forM.S. as the “allegedly incapacitated person”or “AIP.” In that order, the court alsoappointed an independent attorney to serveas counsel for M.S. and “to represent theAIP in all proceedings involving the verified

petition.” 2 The order further specified thatthe court-appointed attorney “may nothereafter serve as guardian, nor as theguardian's counsel.”

2 In the event of an adjudication of incapacity, thecourt-appointed attorney for the AIP was alsodirected to review the initial guardianship report andto represent the ward during any objection to thatreport.

Private Counsel for M.S.The attorneys for the petitioner/brother ofM.S., Gilberto Sarfaty, and M.S. himself,promptly notified M.S.'s mother, two sisters,and M.S.'s aides of the commencement of theguardianship and the fact that the petitionersought an independent guardian for M.S.In less than ten days from the service ofthe circuit court's form order appointingthe examining committee and independent,court-appointed counsel, the other familymembers retained counsel and appeared inthe case.

Of particular note, and as detailed in theattached time line, attorneys and theirlaw firm purporting to be appearing onbehalf of M.S.—not M.S.'s mother orsisters, but M.S., the allegedly incapacitatedperson himself—immediately appeared inthe case and moved to be substituted forthe independent, court-appointed attorney

representing M.S. 3 That motion was signedby M.S. himself.

3 M.S.'s motion for substitution of counsel was filedon December 18, 2015—15 days after the petitionwas filed, and only seven days after the circuit court'sorder appointing the examining committee and court-appointed attorney was served by mail.

The independent, court-appointed attorneyfor M.S. was concerned that, though M.S.“may substitute her or his own attorneyfor the attorney appointed by the court,this is not an absolute right and certainfactors must be taken into consideration

when allowing this substitution.” 4 *1077(Emphasis in the original). The court-appointed attorney expressed concernregarding M.S.'s capacity, based on M.S.'slife-long medical history, the verifiedallegations in the petition, and the pre-petition assessment report of Dr. Toomerattached to the petition. The objectionsnoted uncertainty as to who actually hiredprivate counsel for M.S., and suggested thatthe court assure that private counsel forM.S. “is a disinterested third party, with[M.S.'s] best interests in mind.” The court-appointed attorney did not, however, pressfor an evidentiary hearing on her objections.

4 § 744.331, Fla. Stat. (2016). See alsoHolmes v.Burchett, 766 So.2d 387, 388 (Fla. 2d DCA 2000)

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(AIP presumed competent to contract and retaincounsel of his or her choice unless and until it has beenproven, based on clear and convincing evidence, thatthe AIP is incapacitated with respect to the exerciseof that right).

The day after the objections were filed, thecircuit court entered two orders. The firstfound that M.S. is not indigent and orderedreassignment from the Office of CriminalConflict and Civil Regional Counsel “assoon as we have resolved the issue of whoshould be the successor court-appointedattorney,” and a second order grantedprivate counsel's emergency petition to besubstituted in place of the initially-appointedindependent counsel.

Stipulation for Continuance; M.S.'sMotions to Strike and to DismissThe circuit court's standard order ofDecember 10, 2015 (served by mail thefollowing day), scheduled the adjudicatoryhearing on the petition for January 13, 2016.But on January 6, 2016, counsel for all of theinterested persons and for M.S. stipulatedto a motion for continuance of that hearingbecause of scheduling conflicts and ongoingsettlement negotiations. The court grantedthe joint motion and directed counsel tocoordinate a later date for the hearing on thepetition to determine incapacity.

As of January 7, 2016, M.S. was representedby his private counsel, and the original,court-appointed attorney terminated herservices on behalf of M.S. On January13, 2016, M.S.'s private counsel fileda declaration that the petition for adetermination of incapacity was adversary.Although M.S.'s court-appointed counsel

had begun seeking information from thepetitioner's counsel regarding access to M.S.in December, and although M.S.'s motherand M.S.'s private counsel were presentduring a December 29, 2015, interviewwith Dr. Echavarria of the ExaminingCommittee, M.S.'s private counsel nextmoved to dismiss the petition for proceduralreasons. The motion to dismiss, filedJanuary 20, 2016, asserted that M.S. “hasbeen consistently denied the due process andprocedures required in these proceedings,”that the petition is “fatally flawed,” andthat the relief requested is “barred by thedoctrines of unclean hands and estoppel.”

The following day, M.S.'s private counselfiled a notice to require in person testimonyof the three examining committee members,and a motion to strike all three examiningcommittee member reports (each of whichhad recommended a limited guardianshipbased on M.S.'s inability to make informeddecisions regarding a majority of the 13categories assessed in the report).

Hearing and Dismissal Without Leave toAmendPrivate counsel for M.S. amended the

motion to dismiss 5 on April 26, 2016, andthe motion was heard a week later. Thehearing was non-evidentiary, and the thrustof the movants' objections were (a) thealleged failure of court-appointed counselto read the petition and form notice toM.S., and (b) the fact that the examiningcommittee members did not file their reports*1078 within the fifteen day period allowedby the form notice and section 744.331(3)

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(e), Florida Statutes (2016). Private counselfor M.S. also addressed the alleged merits ofthe petition, moving beyond the four cornersof the petition and its attachments. Duringthat hearing, as here, private counsel forM.S. argued that less restrictive alternativesto guardianship should be considered—including a guardian advocate under section

393.12, Florida Statutes (2016), 6 and apetition under section 709.2116, FloridaStatutes (2016), for judicial relief regardingany alleged conflict of interest relating to theexecution of powers of attorney by M.S. orfamily members.

5 The amended motion to dismiss, like the original, wasjoined by M.S.'s Mother and both sisters.

6 The day after the notice of appeal was filed in thiscase, private counsel for M.S., joined by counselfor family members other than the petitioner inthe present case, executed a separate petition forthe appointment of one of those family membersas a limited guardian advocate for M.S. Whenthe petitioner in the present case (M.S.'s brother)sought leave to intervene in that case, M.S.'s counselopposed, and moved to strike, that motion. The trialcourt granted the motion and has recognized GilbertoSarfaty as an interested party.

Counsel for the petitioner argued thatM.S.'s private counsel had stepped intothe shoes of counsel for M.S., with theability and duty to read the petition tohim, explain its consequences, and assist himwith scheduling timely meetings with theexamining committee members so that their

reports could be timely filed. 7 The courtdetermined, however, that the proceedingsneeded to begin anew and that the petitionerwould not be allowed to amend the petition.The court expressed the well-intentionedhope that the family members might bereconciled and avoid the expense of further

proceedings, though recognizing that thedismissal was “unusual.” The present appealfollowed.

7 As private counsel assuming the representation ofM.S., it was counsel's professional obligation to helpM.S. understand the petition so as to mount a defenseto the allegations in the petition (if that was M.S.'sinformed decision). As already noted, M.S. signedthe motion to substitute private counsel, and privatecounsel was present at each of the three assessmentmeetings between examining committee members andM.S.

Analysis[1] [2] [3] Our standard of review for anorder granting the dismissal of a petitionwithout leave to amend is de novo. Wereview the allegations within the four cornersof the petition and its attachments, assumethem to be true, and construe all reasonableinferences from those allegations in favorof the petitioner. Greene v. Times Publ'gCo., 130 So.3d 724, 728 (Fla. 3d DCA2014); Lonestar Alt. Sol., Inc. v. Leview–Boymelgreen Soleil Developers, LLC, 10So.3d 1169, 1172 (Fla. 3d DCA 2009).

The order of dismissal, and the oral rulingthat amendment would not be allowed,are grounded on (1) an alleged failureof due process; (2) the allegedly untimelyfiling of the examining committee memberreports; and (3) the objection by the initial,court-appointed counsel to the appointmentof M.S.'s private counsel, alleged to have

been prejudicial to M.S. 8 While thesearguments may constitute defenses to thepetition, they fail to establish the legalinsufficiency of the petition. They are alsocircular arguments because of the unusualprocedural developments in the case.

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8 All other motions, including M.S.'s motions to strikethe examining committee reports, were held to bemoot in the order of dismissal.

Within days of independent, court-appointed counsel's receipt of the standardorder appointing her, M.S. had signeda paper prepared by his proposed,private *1079 counsel asking that court-appointed counsel be discharged. Thisoccurred because counsel for the petitionerimmediately (and properly) disseminated thepetition and its attachments electronically toM.S.'s family members. M.S., his mother,and his two sisters then immediately hiredfour separate Miami law firms to represent

them. 9 As soon as private counsel wassubstituted for court-appointed counsel,the normal urgency in guardianship casesapparently diminished, because all counselstipulated to the continuance of theoriginally-set evidentiary hearing.

9 According to the petition and its attached assessmentby Dr. Toomer, M.S. only has access to a smallamount of money managed by his sister, who residesin New York. “Finances are controlled and managedby family members.” The petition alleged that M.S.owns assets exceeding millions of dollars but has noability to understand or manage the funds. M.S.'sability to retain his private counsel would seemto have required assistance from the very familymembers alleged in the petition to have conflicts ofinterest in the use of powers of attorney presented toM.S. for his execution.

In light of this unusual record, M.S.'sreliance on strict adherence to the time andnotice requirements in section 744.331(3)(e)and in the circuit court's standard noticeand order mailed December 11, 2015, isnot persuasive; M.S.'s own counsel andhis family could have immediately askedthe Court (but did not) to defer the

examining committee member assessments,or to expedite them. Instead, counsel forM.S. made him available for the examiningcommittee member examinations and satwith M.S. as each professional assessed M.S.M.S. now complains of actions not taken bythe court-appointed attorney he petitionedto discharge, and then purportedly not takenby his own private counsel.

We have identified no Florida case holdingthat the timing set forth in the statutecannot be waived by an AIP or the AIP'sprivate counsel. Nor have we identifieda case holding that the timing set forthin the statute is so significant to theprocess and parties that a petition must bedismissed, without leave to amend, if the

time requirements are not strictly fulfilled. 10

10 It bears noting that the standard order appointingindependent counsel and the three examiningcommittee professionals was served by mail onDecember 11th, with the deadlines falling during theend-of-year holidays.

Instead, M.S. and three family memberspersuaded the trial court months later thatsubstantial compliance with the statute andrule were insufficient, citing such casesas In re Fey, 624 So.2d 770 (Fla. 4thDCA 1993), and Borden v. Guardianshipof Borden–Moore, 818 So.2d 604 (Fla. 5thDCA 2002). Although In re Fey holds that“compliance with section 744.331 and rule5.550 is mandatory,” 624 So.2d at 772,the non-compliance in that case involvedthe failure to appoint independent counselfor the AIP until “the commencement ofthe final hearing,” “long past the pleadingsand trial preparation stage.” Id. No suchfailure occurred in the present case, in

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which the court's initial order, mailed onlydays after the petition was filed, appointedindependent counsel and the members of theexamining committee. And no final hearinghas begun, much less occurred, in this case.

Similarly, in Borden, the AIP's daughter(who had petitioned for a determination thather mother was incapacitated) and the AIP'scourt-appointed independent attorney werenot notified of a hearing on a motion bythe AIP's husband. “The hearing was notrecorded, no examining committee reportswere considered because the examiningcommittee had not yet completed therequired examinations, and [the AIP's]court-appointed attorney did not *1080participate because he was not notified ofthe hearing.” 818 So.2d at 606. Nevertheless,at the conclusion of that hearing, the trialcourt found that the AIP was competent anddismissed the petition. Id.

Unsurprisingly, the Fifth District in Bordenreversed the order of dismissal, based onthe lack of any notice to the petitioner andthe AIP's counsel. In doing so, that courtalso found that the trial court should nothave dismissed the facially sufficient petitionwithout considering examining committeereports and conducting an adjudicatoryhearing. These were the flagrant departuresfrom the mandatory requirements of section744.331 in Borden. What occurred in thepresent case—a few days of delay in the filingof the examining committee member reportsduring the end-of-year holiday season,following a change in counsel sought by theAIP himself—is entirely distinguishable.

The DissentOur dissenting colleague argues forcefullythat the order below must be affirmedbecause of “fundamental error” regardingthe petition and the fact that the initial,court-appointed attorney “completelyignored her duties as Elisor ....” Dissent, slipop. at 1087. A brief and specific response isappropriate.

No fundamental error occurred. Whatoccurred is unique to the present case and isnot a feature of any of the statutes, rules, orcases relied upon by the appellees and ourcolleague. That occurrence is that the court-appointed attorney and elisor, Ms. Valdes,was served by mail on December 11, 2015,

with the order appointing her. 11 Over aweek before the deadline for her to read thepetition to M.S., Ms. Valdes had alreadybeen served with an emergency petition forher substitution by M.S.'s current counsel,and the petition was signed by M.S. himself.Surely the dissent and M.S.'s current counselcannot be suggesting that M.S. signed themotion for substitution without reading thecopy of the notice mailed to him, or anothercopy provided by his chosen private counsel,or having it read to him by his personalcounsel. As no evidentiary hearing has beenheld on this point (or on any other issue inthe case), the record does not establish thatthe notice was not read to M.S. as providedby Florida Probate Rule 5.550(b)(2).

11 That this is not a “lack of notice” case is furtherillustrated that the certificate of service by mail by theDeputy Clerk also certifies that a copy of the order ofappointment and the petition itself were mailed to thepetitioner (Gilberto Sarfaty), M.S. himself, his family

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members indicated in the petition, all attorneys ofrecord, and each member of the examining committeeon December 11, 2015.

The attached time line demonstrates thatMs. Valdes sought information frompetitioner's counsel regarding access to M.S.on December 26, 2015, which is over aweek after M.S.'s personal counsel hadbegun advising M.S. Ms. Valdes's timerecords, which are in the record, refer toan email and a letter from M.S.'s personalcounsel as early as December 18, 2015.Thereafter, (1) the court granted the motionfor substitution of counsel, and (2) M.S.'sprivate counsel, not Ms. Valdes, attendedthe meetings with M.S. and each of thethree members of the examining committee,and (3) a scheduled adjudicatory hearingwas continued by agreement among counsel.Any error which occurred in moving thepetition toward an adjudicatory hearingwas not a fundamental error (of the kindapparent in the reported cases), but rather aninvited error.

Turning next to the examining committeereports, apparently the appellees and thedissent would allow dismissal of a petitionwithout leave to amend if a singleexamining committee report was filed a*1081 single day after the 15–day periodallowed in section 744.331 (3)(e). Such adraconian interpretation must be rejectedafter considering the express purpose of thestatute and rule—providing the AIP andparties sufficient time before an adjudicatoryhearing to understand and contest thereports if that is considered appropriate. Nocase has held that missing the 15–day periodby a few days warrants dismissal of thepetition without leave to amend.

The dissent's quotations from Fey andBorden have already been addressed inthis opinion—a broadly-written statementin Borden that “[c]ompliance withthe requirements of section 744.331 ismandatory and the trial court's failure toadhere to those requirements constitutesreversible error,” 818 So.2d at 609, was notreferring to an AIP represented by his owncounsel after the AIP signed a motion andapparently authorized the filing of numerouspleadings, or to an AIP whose counselattended his meetings with all members ofthe court-appointed examining committee(as occurred in the present case).

Rather, Borden involved a petitioner whowas given “no notice, reasonable orotherwise, that dismissal of the incapacityproceedings would be considered by thecourt” at a hearing, when: dismissal hadnot even been sought by an adverse party;an attorney appeared on behalf of the AIPwithout obtaining an order of substitutionfor the court-appointed attorney; no courtreporter recorded the proceedings; and thecourt dismissed the petition having neverobtained the examining committee's report.Id. at 607–609. Those are the departuresfrom the statute and rules referred to by theFifth District in Borden, not the fact thatthe examining committee reports were a fewdays late, or that successor counsel for theAIP criticized the court-appointed counsel'sfailure to read the initial notice to the AIP(following the delivery to the AIP of copiesof both the petition and the notice).

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Another case cited by the dissent for theprinciple that proceedings to determinecompetency must strictly comply withthe statute, Rothman v. Rothman, 93So.3d 1052, 1054 (Fla. 4th DCA 2012),ordered dismissal of a guardianship petitionbecause two of three examining committeemembers concluded that the AIP was notincapacitated. The trial court had grantedthe petition, despite the fact that thestatute requires dismissal of the petitionif a majority of the examining committeemembers conclude that the alleged AIP isnot incapacitated. This is in sharp contrastto the present case, in which all threeof the independent examining committeemembers concluded that M.S. could notmake informed decisions in a majority ofcategories assessed, such that a limitedguardianship is appropriate. And these threereports followed a similar evaluation by Dr.Toomer, discussed earlier and detailed ina written report attached to the verifiedpetition.

Similarly, the dissent's citation to Adelmanv. Elfenbein, 174 So.3d 516, 518 (Fla.4th DCA 2015), for propositions thatthe guardianship statutes must be strictlyconstrued and that failure to adhere to therequirements of section 744.331 constitutesfundamental error, must also be consideredagainst the record in that case. Adelmaninvolved two separate petitions by a grand-niece for the appointment of a plenaryguardian for the petitioner's great uncle.In the first, the trial court dismissed thepetition after determining that the AIP'sadvance directive documents “provided aless restrictive alternative to guardianship.”

The petitioner/grand-niece did not appealthose final orders.

“Several months later, the grand-niece fileda ‘petition to reopen’ the guardianship,”and the trial court conducted a trial andappointed a professional plenary *1082guardian for the AIP. Id. at 517. TheFourth District found that the trial courtlacked jurisdiction to enter the order becausethe petition to reopen the case “is notpremised on any rule or statute, andAppellee cites no statutory authority toreopen an incapacity proceeding where noguardianship was ordered.” Id. at 518.No such lack of jurisdiction and completeabsence of statutory authority is evident inthe record in the present case. The dissent'sreliance on Adelman is misplaced.

Finally, the dissent cites a case involvingdefects in personal service and due process.The issue of the sufficiency of service inthe present case is readily resolved throughan evidentiary hearing, if truly in doubt,rather than summary dismissal withoutleave to amend. There is abundant evidencethat the petition was delivered to M.S.His counsel has not denied, in promptlyappearing with the consent of M.S. todefend his interests, that counsel discussedthe verified allegations in the petition withhim. This is a far cry, in short, from aplaintiff's attempt to accomplish service bymailing the summons and complaint to acorporate employee “at the private mailboxregistered to the corporation” (versus theregistered homestead address in Florida ofthe corporate principals), in the case cited by

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the dissent. McDaniel v. FirstBank PuertoRico, 96 So.3d 926, 929 (Fla. 2d DCA 2012).

ConclusionThe petition and its attachments are faciallysufficient 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 thepetitioner to amend the petition, should hechoose, and to permit M.S. and the other co-respondents to raise such defensive matters

as each may consider appropriate. 13 M.S.'smotions to require in-person testimony ofthe examining committee members and tostrike the examining committee reports weredismissed as moot rather than heard anddetermined; if renewed, those motions maybe heard before the adjudicatory hearing.

12 M.S. has not answered the petition; his amendedmotion to dismiss, after declaring the petition anadversary proceeding, is not a “responsive pleading”for purposes of the petitioner's “absolute right toamend the complaint before a responsive pleading isserved.” Boca Burger, Inc. v. Forum, 912 So.2d 561,567 (Fla. 2005).

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

Reversed and remanded for furtherproceedings.

EMAS, J., concurs.

Attachment

*1083

*1084

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*1085

ROTHENBERG, C.J. (dissenting).Florida's guardianship law establishes veryspecific and detailed procedures whichmust be followed to determine incapacity,including but not limited to the giving ofnotice, providing independent counsel, theappointment of a committee to examine thealleged incapacitated person, and the settingof the time limitations for the filing of theexamining committee reports. Because manyof those requirements were not satisfiedin this case, the probate court correctlydismissed the guardianship petition withoutprejudice for the filing of a new petition.

THE NOTICE REQUIREMENTS

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With regard to notice to the allegedincapacitated person after a petition todetermine incapacity is filed, section744.331, Florida Statutes (2015), provides:

(1) NOTICE OFPETITION TODETERMINEINCAPACITY.—Noticeof the filing of a petitionto determine incapacityand a petition for theappointment of a guardianif any and copies of thepetitions must be servedon and read to the allegedincapacitated person. Thenotice and copies of thepetitions must also begiven to the attorney forthe alleged incapacitatedperson, and served upon allnext of kin identified in thepetition....

(bolded emphasis added).

Florida Probate Rule 5.550(b)(2), entitledPetition to Determine Incapacity, providesin relevant part:

Service on Alleged Incapacitated Person.The notice and a copy of the petition todetermine incapacity shall be personallyserved by an elisor appointed by thecourt, who may be the court appointedcounsel for the alleged incapacitatedperson. The elisor shall read the noticeto the alleged incapacitated person, butneed not read the petition. A returnof service shall be filed by the elisor

certifying that the notice and petitionhave been served on and the notice readto the alleged incapacitated person. Noresponsive pleading is required and nodefault may be entered for failure to filea responsive pleading. The allegationsof the petition are deemed denied.

(bolded emphasis added).

*1086 An “elisor” is a person appointed bythe 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 adetermination that his forty-six year oldbrother, M.S., is incapacitated and theappointment of a plenary guardian forM.S. The petition alleges that M.S.is incapacitated due to “comprehensiondisabilities” that have existed M.S.'s entirelife. M.S. lives in Aventura, Florida;Gilberto lives in Lima, Peru; M.S.'s motherlives in Paris, France; and M.S.'s sisters livein New York City and Peru.

On December 9, 2015, the probate courtissued a Notice and Order which: (1)appointed a three member committee toexamine M.S.; (2) appointed a generalmagistrate to conduct hearings and makerecommendations to the probate court;(3) appointed Irama Valdes to representM.S. as M.S.'s attorney; and (4) appointedMs. Valdes as the Elisor. The Notice andOrder specifically instructed Ms. Valdes topersonally serve M.S. with the Notice andthe petition and, thereafter, to file a returnof service within fifteen days from the date

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of the Notice and Order certifying that theNotice had been read to M.S.

The portions of the Notice and Orderrelevant to the appointments of Ms. Valdesas M.S.'s attorney and as the Elisor providesas follows:

This cause having come before the Courton a petition to (determine incapacityof) and/or (appoint a guardian for) theabove-named Respondent, the Courthereby NOTIFIES the Petitioner, theRespondent (an alleged incapacitatedperson [M.S.], the Respondent's knownnext of kin, and all attorneys of record thatthe following has been ADJUDGED:

....

2. Court Appointed Attorney

Irama Valdes

19 W. Flagler St.

Miami, FL 33130

a member of the Florida Bar in goodstanding, whose telephone number(s) is/are (305) 358–1771 hereby appointedcounsel to and will represent [M.S.]in all proceedings involving thePetition to Determine Incapacity andAppointment of Guardian, and, ifthere is an adjudication of incapacity,said counsel shall review the initialguardianship report and shall representthe Ward during any objection thereto.The appointed counsel may nothereafter serve as guardian, nor as theguardian's counsel. This appointment

may be terminated, per court order,if [M.S.] seeks to substitute his or herown counsel for the counsel hereinappointed. Appointed counsel will becompensated for services rendered to[M.S.] pursuant to Florida Law.

3. Service by Elisor

[M.S.'s] above-named court appointedattorney is also appointed Elisor in thismatter. The Elisor shall personally servethis notice and the petition(s) filedherein on, and read the notice to, [M.S.].The Elisor shall file a return of service,no later than fifteen (15) days from thedate of this Order, certifying that thenotice 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. Valdesto serve in two different capacities: (1) asappointed counsel to represent M.S. unlessand until private counsel is substituted torepresent M.S.; and (2) as the Elisor, who ischarged with the responsibility to serve andread the Notice to M.S. and, thereafter, tofile a return of service no later than fifteendays from the date of the Notice, certifyingthat the Elisor has served the *1087 petitionand Notice on M.S. and that she read theNotice to M.S. Ms. Valdes was thus requiredto file a return of service by December 28,

2015. 14

14 The fifteen-day deadline was extended to December28, 2015, due to the Christmas holiday.

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It is undisputed that Ms. Valdes completelyignored her duties as the Elisor and thedirectives of the probate court's Notice andOrder, as well as Florida Probate Rule5.550(b)(2) and section 744.331(1). She didnot serve the petition or Notice on M.S.; readthe Notice to M.S.; or file a return of servicein the probate court by December 28, 2015.In fact, she has not to this day performedthese court-ordered and statutory duties.

It is also undisputed that, although theprobate court ultimately granted M.S.'smotion for substitution of Ms. Valdes withprivately retained counsel to represent M.S.as his attorney, M.S. never sought, and theprobate court has never granted, a motion todischarge Ms. Valdes as the Elisor.

THE EXAMININGCOMMITTEE REQUIREMENTS

As with the notice provisions alreadyaddressed, section 744.331(3)(e) is writtenin mandatory language and states that“[e]ach member of the examining committeemust submit a report within 15 days afterappointment.” Additionally, the Notice andOrder places a similar requirement on eachmember of the examining committee:

At least five (5) days beforethe hearing, or withinfifteen (15) days of the dateof this Order, whicheveris earlier, a written reportthat confirms [sic] to therequirements of section744.331, Florida Statutes,

must be filed with theClerk of this Court withcopies sent to [M.S.],the Petitioner, and allattorneys of record.

Again, it is undisputed that none of thecommittee member's reports were filedwithin the fifteen days mandated by theprobate court's Notice and Order andsection 744.331(3)(e).

M.S.'S OBJECTIONS TO THESEPROCEDURAL DEFECTS

The record reflects that M.S. immediatelyand repeatedly objected to the aboveprocedural defects, alleged that his dueprocess rights were violated, and alleged thathe was prejudiced. The record reflects thefollowing.

The petition to determine incapacity wasfiled by Gilberto on December 3, 2015.On December 10, 2015, the probate courtissued its Notice and Order appointing Ms.Valdes as counsel for M.S.; appointing Ms.Valdes as Elisor; appointing an examiningcommittee; appointing a general magistrate;setting the requirements for the service andnotice to M.S.; setting the time limitationsrelated to the notice to M.S., the filing ofthe return of service, and the filing of thecommittee members' reports; and setting thehearing date for January 13, 2016.

On December 18, 2015, M.S.'s privatelyretained counsel, Richard C. Milsteinand R. Dale Noll (collectively, “private

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counsel”), filed an emergency petition forsubstitution of counsel, which was signedby Richard Milstein and M.S. This petitionspecifically noted that although the petitionto determine incapacity had been filed onDecember 3, 2015, as of the filing of thepetition for substitution of counsel, M.S.had not been notified of the name of hiscourt-appointed counsel. On December 18,2015, private counsel also filed an emergencymotion for authorization to review and copythe court file.

*1088 On January 7, 2016, the probatecourt granted the petition for substitutionof counsel and the motion for authorizationto review and copy the court file. The courtalso entered an agreed order continuing theJanuary 13, 2016 hearing on the petition todetermine incapacity, which specified that“[t]he continuance does not waive any rightsthat the alleged incapacitated person or anyinterested person has with regard to anyobjections or defenses to be raised in theproceedings.” (emphasis added).

On January 20, 2016, private counsel filedthe following: (1) a motion to dismissthe petition to determine incapacity, whichwill be addressed more fully below; (2) amotion to strike the reports of the examiningcommittee as untimely filed; (3) a motionto strike the report of examining committeemember Neda Picuric because it was bothuntimely and the examination was primarilyconducted in English despite M.S. advisingher that his primary language is Spanish; and(4) a declaration that the proceedings areadversary.

The amended motion to dismiss the petitionto determine incapacity was premised, inpart, on the failure of the Elisor to personallyserve the Notice and Order on M.S. andto file the requisite return of service; thefailure of appointed counsel to meet withM.S. to notify him of the proceedings orto meet with M.S. prior to the filing of herobjection to the retention and substitutionof private counsel selected by M.S.; andthe failure of the examining committeemembers to file their reports within thetime prescribed by section 744.331(3)(e) andthe probate court's Notice and Order. Theamended motion to dismiss argued that theserequirements are mandatory, and therefore,the failure of the Elisor, appointed counsel,and the examining committee members tocomply with these mandatory requirementsconstituted fundamental error, denying M.S.of due process and resulting in prejudiceto him. The relevant paragraphs of theamended motion to dismiss are as follows:

4. [M.S.] has been consistently denied theappropriate due process and proceduresrequired in these proceedings underChapter 744 of the Florida Statutes,the Florida Probate Rules, and caseauthority. In addition, the Petition isfatally flawed and the relief requestedbarred by the doctrines of unclean handsand estoppel. As a result, the Petition mustbe dismissed.

5. Court–Appointed Counsel wasappointed the Elisor and required topersonally serve the Notice and Orderon [M.S.], read the Notice and Order to[M.S.], and file a return of service within

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fifteen days of the date of the Notice andOrder. (Ex. 1, ¶ 3).

6. Court–Appointed Counsel failed toaccomplish 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 ofCounsel, just minutes prior to the hearingand after filing a pleading adverse to[M.S.] without his permission. She spokewith [M.S.] briefly for the first time onJanuary 6, 2016 by telephone, althoughher billing records demonstrate that shecommunicated with counsel for Petitioneron more than one occasion.

8. The Court–Appointed Counsel filedan objection to the retention of privatecounsel selected by [M.S.] that containedwithin the pleading statements adverse to[M.S.]. The Court entered an Order onJanuary 7, 2016 authorizing the retention ofprivate counsel and discharging the Court–Appointed Counsel.

9. [M.S.] is entitled to proper noticeunder Florida law and the Florida ProbateRules, as are consistent with due processand [M.S.'s] fundamental Constitutional*1089 rights. § 744.331(1), Fla. Stat.(2015); § 744.33l(5)(a), Fla. Stat. (2015);In re Fey, 624 So.2d 770, 771–72 (Fla. 4thDCA 1993) (finding that failure to followthe “very specific procedures” outlined in§ 744.331 of the Florida Statutes createda violation of the alleged incapacitatedperson's due process and equal protectionof the laws); Fla. Prob. R. 5.550(b)(2).

10. The Court–Appointed Counsel alsofailed to file a notice of adversaryproceeding within the timeframe allottedunder the Notice and Order. (See Noticeand Order, ¶ 4 (providing that any partycontemplating that the proceedings will beadversarial must file a notice, pursuant toRule 5.025 of the Florida Probate Ruleswithin five (5) days of receipt of the Noticeand Order).

11. As of the date of the filing of the initialMotion to Dismiss, January 13, 2016,more than thirty days after the Petitionwas filed, [M.S.] had not received properservice of notice for these proceedings, nora certification that notice was served uponhim as ordered by this Court.

12. As a result of these irregularities andfailure to follow the dictates of FloridaStatutes, Florida Rules, and Florida caseauthority, the Petition must be dismissed.

13. The examining committee membershad 15 days from appointment to examine[M.S.] and submit their individual reportswith the Court. “Each member of theexamining committee must submit areport within 15 days after appointment.” §744.331(3)(e), Fla. Stat. (2016) (emphasisadded).

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

following the legal holiday. 15

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15. One of the examining committeemembers, Dr. David Echavarria, metwith [M.S.] on December 29, 2015 andsubmitted his report on that same day—one day after the 15th day cutoff period.As of the date of filing the initial Motionto Dismiss, January 13, 2016, that wasthe only examining committee report filedwith the Court and received by [M.S.].

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

17. Dr. Neda Picuric had her firstappointment to meet with [M.S.] onJanuary 7, 2016, but rescheduled the timeto the following day, January 8, twenty-nine (29) days after her appointment. Thereport of Dr. Picuric was first received bythe Court on January 13, 2016, a date stillbeyond any timeframe permissible in thisproceeding.

*1090 18. Because the examiningcommittee reports are all untimely, theprocedural requirements of § 744.331 ofthe Florida Statutes (2015) have not beenmet and the Petition should be dismissed.

15 The Notice and Order also indicates that theexamining committee reports must be filed “at leastfive days before the hearing [on the Petition], or withinfifteen (15) days of the date of this order, whichever isearlier.” (Ex. 1, ¶ 1 (emphasis added)). Although thelanguage makes clear that the deadline of December28 is the cutoff for the filing of the examinationcommittee reports, a very liberal interpretation would

provide that the reports might have been able to befiled by January 8, 2016—within five days of thehearing set in the Notice and Order for January 13,although his was not the earlier of the times specifiedin the Notice and Order. Only one of the examiningcommittee reports met that hypothetical deadline.

The amended motion to dismiss thepetition to determine incapacity arguedthat the failure to comply with section744.331 constituted fundamental error andprovided the relevant statutory and case lawauthority in support of this argument. Asadditional grounds for dismissal, the motionclaimed that the petition to determineincapacity, which was issued under penaltyof perjury, was “riddled with factualerrors” requiring dismissal. For example,the petition to determine incapacity atteststhat English is M.S.'s primary languagewhen the “Petitioner knows fully well that[M.S.'s] primary language is Spanish.” Thisallegation is relevant, as it is alleged inthe separate motion to strike the examiningcommittee report of Neda Picuric, filed onthe same date, that Ms. Picuric conductedthe bulk of her examination of M.S. inEnglish despite M.S. clearly indicating toMs. Picuric that Spanish is his primarylanguage.

The record thus reflects that the groundsraised in the appeal were timely and properlyraised and considered below.

DISMISSAL OF THE PETITIONTO DETERMINE INCAPACITY

After conducting a properly noticed andfully litigated hearing on M.S.'s amendedmotion to dismiss the petition to determine

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incapacity, the probate court issued anorder granting the motion. The hearingtranscript reflects and counsel for M.S.properly conceded at oral argument beforethis Court that, although the probatecourt denied Gilberto's motion for leave toamend the petition to determine incapacity,the dismissal of the petition to determineincapacity was without prejudice to file anew action in the event the parties are unableto reach a settlement of the issues.

The probate court's order dismissing thepetition to determine incapacity was basedon the following three stated grounds:

A. These proceedings have failed to satisfy[M.S.'s] due process rights or to complywith the procedural requirements of §744.331, Florida Statutes.

B. The reports filed by the examiningcommittee members were not filedwithin the time prescribed by § 744.331of the Florida Statutes or the Noticeand Order issued by this Court on Courton [sic] December 10, 2015.

C. The court-appointed counsel, prior tobeing substituted by private counsel for[M.S.], made arguments in a filing withthis Court and in a prior hearing thatwere against the interests of [M.S.'s]and were prejudicial to [M.S.], whichstatements were objected to by privatecounsel for [M.S.].

As all three grounds are supported by therecord and Florida law, the order must beaffirmed.

It is undisputed that Ms. Valdes, as thecourt appointed Elisor, failed to comply withsection 744.331(1), Florida Probate Rule5.550(b)(2), and the probate court's Noticeand Order. She did not meet with, serve,or read the Notice and Order to M.S.,or file a return of service within fifteendays certifying that she had complied withthese directives. Although Ms. Valdes wasappointed as Elisor on December 10, 2015,the first time she met with M.S. was onJanuary 7, briefly and just moments priorto the scheduled hearing on M.S.'s motionfor substitution of counsel. During this briefcontact, Ms. Valdes did not attempt to serveor provide M.S. with the requisite notice.The record suggests *1091 that this briefcontact was made in Ms. Valdes' capacity asM.S.'s appointed counsel and was related tothe motion for substitution of counsel.

It is also undisputed that the reportswere untimely filed in violation of section744.331(3)(e) and the probate court's Noticeand Order. Thus, the first two groundsfound by the probate court in its ordergranting the amended motion to dismiss areclearly supported by the record. Althoughnot necessary for affirmance of the probatecourt's order, the record also supports thethird finding—that prior to the substitutionof private counsel, the court appointedcounsel (Ms. Valdes) made arguments ina court filing that were against M.S.'sinterests and prejudicial to M.S. Based onthese findings, the probate court declined toaddress the various other objections leviedby M.S.

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LEGAL ANALYSIS

The only remaining issue is whether theprobate court erred by dismissing thepetition to determine incapacity on theabove stated and proved grounds fordismissal. The Legislature has made itsintent clear in section 744.1012, whichprovides as follows:

The Legislature finds thatadjudicating a persontotally incapacitated and inneed of a guardian deprivessuch person of all her orhis civil and legal rightsand that such deprivationmay be unnecessary. TheLegislature further findsthat it is desirableto make available theleast restrictive form ofguardianship to assistpersons who are onlypartially incapable ofcaring for their needs.Recognizing that everyindividual has unique needsand differing abilities, theLegislature declares thatit is the purpose of thisact to promote the publicwelfare by establishinga system that permitsincapacitated persons toparticipate as fully aspossible in all decisionsaffecting them; that assistssuch persons in meeting the

essential requirements fortheir physical health andsafety, in protecting theirrights, in managing theirfinancial resources, and indeveloping or regainingtheir abilities to themaximum extent possible;and that accomplishesthese objectives throughproviding, in each case, theform of assistance that leastinterferes with the legalcapacity of a person to actin her or his own behalf.This act shall be liberallyconstrued to accomplishthis purpose.

(emphasis added)

In addition to its stated intent to allowincapacitated persons to participate asfully as possible and to interfere as littleas possible with the legal capacity ofan alleged incapacitated person, section744.3201, Florida Statutes (2015), whichestablishes the petition requirements, andsection 744.331, which establishes theprocedures for determining incapacity, bothuse mandatory terms such as “must” and“shall.” For example, section 744.3201(2)states that “[t]he petition must be verifiedand must” include specific identificationinformation of the alleged incapacitatedperson, the factual information being reliedon to believe the person is incapacitated,and the primary language of the allegedincapacitated person, among other things.(emphasis added).

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Nearly every provision in section 744.331contains mandatory language. Relevant tothis appeal are the following provisions:

(1) NOTICE OF PETITION TODETERMINE INCAPACITY.—Noticeof the filing of a petition to determineincapacity and a petition for theappointment of a guardian if any andcopies of the petitions must be servedon and read to the alleged incapacitatedperson. The notice and copies of thepetitions must also be given to the attorneyfor the alleged incapacitated person, and*1092 served upon all next of kinidentified in the petition. The notice muststate the time and place of the hearingto inquire into the capacity of the allegedincapacitated person and that an attorneyhas been appointed to represent theperson and that, if she or he is determinedto be incapable of exercising certain rights,a guardian will be appointed to exercisethose rights on her or his behalf.

....

(3) EXAMINING COMMITTEE.—

(a) Within 5 days after a petitionfor determination of incapacity hasbeen filed, the court shall appointan examining committee consisting ofthree members. One member must bea psychiatrist or other physician....Members of the examining committeemust be able to communicate, eitherdirectly or through an interpreter, in thelanguage that the alleged incapacitatedperson speaks or to communicate in amedium understandable to the alleged

incapacitated person if she or he is ableto communicate. The clerk of the courtshall send notice of the appointment toeach person appointed no later than 3 daysafter the court's appointment.

....

(e) Each member of the examiningcommittee shall examine the person.Each examining committee membermust determine the alleged incapacitatedperson's ability to exercise those rightsspecified in s. 744.3215.... Each memberof the examining committee must submit areport within 15 days after appointment.

....

(h) A copy of each committee member'sreport must be served on the petitionerand on the attorney for the allegedincapacitated person within 3 days afterthe report is filed and at least 5 days beforethe hearing on the petition.

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

Rule 5.550 also contains mandatorylanguage:

(a) Contents. The petition to determineincapacity shall be verified by thepetitioner and shall state:

....

(b) Notice.

(1) Contents. The notice of filing thepetition to determine incapacity shallstate:

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....

(2) Service on Alleged IncapacitatedPerson. The notice and a copy ofthe petition to determine incapacityshall be personally served by an elisorappointed by the court, who may be thecourt appointed counsel for the allegedincapacitated person. The elisor shall readthe notice to the alleged incapacitatedperson, but need not read the petition. Areturn of service shall be filed by the elisorcertifying that the notice and petitionhave been served on and the notice readto the alleged incapacitated person. Noresponsive pleading is required and nodefault may be entered for failure to file aresponsive pleading. The allegations of thepetition are deemed denied.

(3) Service on Others. A copy of thepetition and the notice shall also be servedon counsel for the alleged incapacitatedperson, and on all next of kin.

(words “shall” emphasized).

The probate court's Notice and Order usesmandatory language as well.

The examining committee shall determine[M.S.'s] ability to exercise the rightsthe Petitioner seeks to have removed.The committee is therefore required tosecure [M.S.'s] presence and conducta comprehensive examination that willenable it to thoroughly ascertain*1093 [M.S's] abilities. Accordingly, thecommittee shall have access to, and mayconsider, [M.S.'s] previous examinations,including but not limited to, habilitation

plans, school records, psychological andpsychosocial reports voluntarily offeredfor use by [M.S.]. At least five (5) daysbefore the hearing, or within fifteen (15)days of the date of this Order, whicheveris earlier, a written report that confirmsto the requirements of section 744.331,Florida Statutes, must be filed with theClerk of this Court with copies sent to[M.S.], the Petitioner, and all attorneys ofrecord. Absent a declaration of adversaryproceedings pursuant to paragraph four(4) of this order, the Court shall considerthe examining committee members' writtenreports when making a determination ofincapacity. If the Court finds [M.S.] isincapable of exercising certain rights, aguardian may be appointed.

....

(3) Service by Elisor

[M.S.'s] above-named court appointedattorney is also appointed Elisor in thismatter. The Elisor shall personally servethis notice and the petition(s) filed hereinon, and read the notice to, [M.S.]. TheElisor shall file a return of service, no laterthan fifteen (15) days from the date ofthis Order, certifying that the notice andpetition(s) have been served, and that thenotice has been read to, [M.S.].

(words “shall,” “must,” and “required”emphasized).Despite this mandatory language, themajority contends, without specificallystating so, that the requirements of section744.331 and rule 5.550 are not reallymandatory and that because M.S. later

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became aware that a petition to determinehis capacity had been filed, that somehowobviated the clear mandate of the abovestatute and rule which require personalservice of the petition upon M.S. by theelisor who must actually read the petitionto him and file a return of service withthe probate court verifying that personalservice was effectuated. But that is not thelaw either in probate court or any court.SeeMcDaniel v. FirstBank Puerto Rico, 96So.3d 926, 929 (Fla. 2d DCA 2012) (holdingthat “actual knowledge of a suit will not cureinsufficient service of process ... [b]ecause ofthe fundamental constitutional implicationsof service of process, ‘statutes governingservice of process are to be strictly construedand enforced.’ ”) (quoting Shurman v. Atl.Mortg. & Inv. Corp., 795 So.2d 952, 954(Fla. 2001)).

A review of the case law addressingsection 744.331 and rule 5.550 reflects thatthe appellate courts have concluded thatcompliance with the statute and the rule ismandatory. In In re Fey, 624 So.2d 770 (Fla.4th DCA 1993), the Fourth District Courtof Appeal noted both that the legislativeintent and Florida's guardianship law “setsforth very specific procedures which shall befollowed to determine incapacity, includingbut not limited to the giving of notice,providing independent counsel, appointingan examining committee, [and] submittinga committee report.” Id. at 771–72. The Inre Fey court concluded that the language ofsection 744.331 and rule 5.550 was clear andthat compliance was mandatory. Id. at 772.

In Rothman v. Rothman, 93 So.3d 1052(Fla. 4th DCA 2012), the Fourth DistrictCourt of Appeal granted a petition fora writ of mandamus filed by an allegedincapacitated person to require the trialcourt to dismiss a petition to determine hiscapacity. In granting the writ, the FourthDistrict relied on its previous holding inIn re Keene, 343 So.2d 916, 917 (Fla. 4thDCA 1977), that “proceedings to determinethe competency of a person are generallycontrolled by statute and where a *1094statute prescribes a certain method ofproceeding to make that determination, thatstatute must be strictly followed.” Id. at 1054(emphasis added). The portion of section744.331 at issue in Rothman was subsection(4) which provides that, “if a majority ofthe examining committee members concludethat the alleged incapacitated person is notincapacitated in any respect, the court shalldismiss the petition.” Because the FourthDistrict concluded that the statute must bestrictly followed, and two of the examiningcommittee members had concluded thatthe alleged incapacitated person was notincapacitated, the Fourth District orderedthat the petition to determine incapacity bedismissed.

The Fifth District has also found that“[c]ompliance with the requirements ofsection 744.331 is mandatory and thetrial court's failure to adhere to thoserequirements constitutes reversible error.”Borden v. Guardianship of Borden–Moore,818 So.2d 604, 609 (Fla. 5th DCA 2002)(emphasis added); see alsoAdelman v.Elfenbein, 174 So.3d 516, 518 (Fla. 4thDCA 2015) (holding that “[t]he statutes

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governing the adjudication of incapacityand the appointment of a guardian foran incapacitated person are to be strictlyconstrued” and “compliance with therequirements of section 744.331, FloridaStatutes, is mandatory and failure to adhereto those requirements constitutes ‘errorof fundamental proportions' ”) (internalcitations omitted).

The majority further concludes thatto require compliance with the strictmandates of section 744.331 and rule 5.550is “draconian.” However, the majority'sdispleasure with the mandatory languageand requirements is not grounds to ignorethem. Any changes to the mandatorylanguage contained in section 744.331 andrule 5.550 must come from the Legislature,not the Bench.

CONCLUSION

The language of section 744.331, rule 5.550,and the probate court's Notice and Orderis clear, unambiguous, and mandatory—and for good cause. A determination ofincapacity may result in the loss of a person'slegal rights and the freedom to make basiclife choices, such as financial decisions.

The probate court, therefore, correctlydetermined that if it allowed the proceedingsto proceed “the court would be affecting

the due process rights of [M.S.]. They'vealready been put on a rough path bywhat happened with the court appointedattorney who made disclosures that wereobjected to.” Therefore, the trial courtcorrectly concluded: “So I think that ifwe have a petition to determine capacity,we need to start over.” As the FourthDistrict aptly noted: “In our present daypaternalistic society we must take care thatin our zeal for protecting those who cannotprotect themselves we do not unnecessarilydeprive them of some rather preciousindividual rights.”Adelman, 174 So.3d at518–19 (quoting In re McDonnell, 266 So.2d87, 88 (Fla. 4th DCA 1972)).

Accordingly, I cannot agree with anopinion that ignores clear and unambiguousmandatory language and concludes thatsimply because the petition was faciallysufficient, strict compliance with thesemandatory directives is not required. I alsodo not agree that an amendment of a“facially sufficient” petition can cure theprocedural infirmities in this case. M.S. wasentitled to notice prior to the proceedingsthat ensued. Timely notice potentially couldhave protected M.S. from the prejudice hehas alleged.

All Citations

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