Bergman v. Serns

443 So. 2d 130
CourtDistrict Court of Appeal of Florida
DecidedDecember 6, 1983
Docket83-293
StatusPublished
Cited by7 cases

This text of 443 So. 2d 130 (Bergman v. Serns) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bergman v. Serns, 443 So. 2d 130 (Fla. Ct. App. 1983).

Opinion

443 So.2d 130 (1983)

Carol Serns BERGMAN, Daughter of the Incompetent Ward, Beatrice Greenfield, Appellant,
v.
David R. SERNS, Appellee.

No. 83-293.

District Court of Appeal of Florida, Third District.

December 6, 1983.
Rehearing Denied January 20, 1984.

*131 Ann Mason Parker, Miami, for appellant.

Ruden, Barnett, McClosky, Schuster & Russell and Woodrow "Mac" Melvin, Jr. and James R. George, Fort Lauderdale, for appellee.

Before SCHWARTZ, C.J., and HUBBART and FERGUSON, JJ.

SCHWARTZ, Chief Judge.

In resolving one of the most agonizing consequences of an all-too-familiar modern tragedy, we hold that the transfer of the elderly ward from her own home to a nursing or old age facility may not be ordered in the absence of an affirmative showing, which was not presented below, that such a placement is required for her proper care and well-being.

The ward in question, Mrs. Beatrice Greenfield, who is now eighty-one years of age, was declared incompetent in 1981 after suffering from Alzheimer's Disease for several years. Formerly, as all acknowledge, a vibrant, intelligent and loving person, she is now afflicted with the disabilities of memory and cognition that dreaded ailment entails. Moreover, the profound adversity which has befallen Mrs. Greenfield has been greatly exacerbated by an appallingly bitter dispute over her interests and care — one which is also not uncommon in our society — between her two adult children, the appellant Carol Bergman and the appellee David Serns.

For many years, Mrs. Greenfield has lived in the oceanfront condominium home she shared with her husband before his death. For at least the past six years, she has done so with the aid of a full-time nurse which her affliction has rendered indispensible. In 1983, Mr. Serns, who is under an agreed, court-ordered obligation to provide, inter alia, for those nursing expenses,[1] moved the probate court for an order requiring and approving his mother's transfer, which he had previously arranged, to the Miami Jewish Home for the Aged.[2] Both Mrs. Greenfield's personal physician and one appointed by the court to *132 examine her testified at the ensuing hearing that she was comfortable and receiving excellent care at home, and that she should remain in her home "for the present" and "for some years yet," rather than suffer the trauma of being removed to a totally new and unfamiliar environment; there was no contrary expert testimony. On the basis, however, of his brief observation of and conversation with the ward herself at the hearing, the trial judge concluded:

The Court is now of the opinion, from personal observation, attempted conversation with Mrs. Greenfield ... that Mrs. Greenfield's mental condition is such that she is completely out of touch with her surroundings ... there will be little difference to Mrs. Greenfield as to whether she is in a condominium or in a good nursing home.

On this ground, he ordered the transfer to take place. Mrs. Bergman appeals[3] and we reverse.

Without the necessity of resorting to cliches either about one's castle or the alleged "warehousing" of the elderly, it is plainly "one of the humane ideals which form the basis of our entire legal system," Public Health Trust v. Brown, 388 So.2d 1084, 1086 (Fla. 3d DCA 1980), rev. denied, 399 So.2d 1140 (Fla. 1981), that one has the presumptive right to live and remain in his or her own home, however modest, rather than in an institution, no matter how benign. As this is the rule of life, it is of course the rule of law. A long series of cases have stressed that, since a basic issue of freedom itself is involved, the most nonrestrictive mode of treatment practicable must be adopted and even the most obviously mentally ill person

who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends should never be hospitalized involuntarily.

In re Beverly, 342 So.2d 481, 487 (Fla. 1977); In re Smith, 342 So.2d 491 (Fla. 1977); C.N. v. State, 433 So.2d 661 (Fla. 3d DCA 1983). In Reigosa v. State, 362 So.2d 714 (Fla. 3d DCA 1978), this court reversed an order characterized as requiring the "draconian procedure," 362 So.2d at 715, of involuntary hospitalization when there was no showing that the patient was unable to survive outside the hospital with the care of family or friends. This case, in which it clearly appears to the contrary, even more obviously requires the same result. See generally, Lake v. Cameron, 364 F.2d 657 (D.C. Cir.1966) (reversing commitment to hospital of woman suffering from senile brain disease and remanding for consideration of less restrictive courses of treatment extensively discussed at 364 F.2d 660-61, nn. 5-14).

Serns attempts to distinguish these decisions on the ground that they involve involuntary hospitalizations under the Baker Act, see Sec. 394.467(1)(b), Fla. Stat. (Supp. 1982), or similar procedures, rather than a guardianship such as this. We think, however, that the differences work directly to the opposite of his contentions and the ruling below. Unlike those proceedings, in which the interests of the public and the state, which is a party to them, are directly involved, the only real concern of the probate court is for the best interests of the ward. In the present situation, when there is no medical indication that the incompetent should be institutionalized for care or treatment she is not receiving at home — and a showing that the transfer will indeed have adverse effects upon her — the only *133 thing to be said in favor of institutionalization is that it is less expensive.

Since, however, it is, after all, either Mrs. Greenfield's own money or an obligation properly to support her which is now at stake,[4] see Guardianship of Ivarsson, 60 Wash.2d 733, 375 P.2d 509, 510 (1975), an order which unnecessarily takes her from her own home in order either to enrich her heirs or relieve her son of that obligation simply cannot be said to serve her "best interests." The legislature has reflected just these considerations by mandating in Sec. 744.361(3), Fla. Stat. (1981) that

In case of an adult ward, the guardian shall honor the ward's preferences as to place and standard of living, either as had been expressed or demonstrated by the ward prior to the determination of his incompetency, or as currently expressed by the ward, insofar as such a request is reasonable. Such preference should be compatible with the ward's present resources and place and standard of living prior to the determination of his incompetency and shall be subject to review by the court. [e.s.]

This provision explicitly embodies the principle, which we have already expressed, that, insofar as possible, the ward should be permitted to remain in her home.

There is no doubt that the order before us is completely contrary to these basic decisional and statutory rules. The finding, based only on the trial judge's manifestly inexpert observations that "there will be little difference to Mrs. Greenfield" whether she is in her own or in a nursing home is unsupported by any competent and substantial evidence — all the evidence is otherwise.

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Bluebook (online)
443 So. 2d 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bergman-v-serns-fladistctapp-1983.