Sarfaty v. in Re: M.S.

• Court: District Court of Appeal of Florida
• Decided: May 10, 2017
• Docket: 16-1419
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 10, 2017. Not final until disposition of timely filed motion for rehearing.

________________

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 Richard C. Milstein and Dale Noll, for appellee.

Before ROTHENBERG, SALTER and EMAS, JJ.

SALTER, J. 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

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

1 Dr. Toomer, a Ph.D. psychologist and diplomate of the American Board of Professional Psychology. 2 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 and 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 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 3 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

specified that the court-appointed attorney “may not hereafter serve as guardian,

nor as the guardian’s counsel.”

“Private Counsel” for M.S.

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 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,”4 this is not an absolute right and might be inappropriate in the case of

M.S. The court-appointed attorney thus filed objections to the substitution motion,

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

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. 4 § 744.331, Fla. Stat. (2016). 5 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 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

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.

6 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 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

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 5 The amended motion to dismiss, like the original, was joined by M.S.’s Mother

and both sisters.

7 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), and a petition under section 709.2116, Florida

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.6

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

6 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. 8 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.,

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.7 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.

7 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 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.8 As soon as private counsel was substituted for court-appointed

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

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

then apparently 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.9

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

9 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 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

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, the trial 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.

12 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

initially-appointed attorney “completely ignored her duties as Elisor” [dissent, slip

op. at 24]. 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

appointing her.10 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

10 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. 13 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

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 numerous emails, correspondence, and telephone calls with

M.S.’s chosen private counsel. When these concluded, (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. 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-

14 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).

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” [original emphasis] 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

15 read the initial notice to the AIP (following the delivery to the AIP of copies of

both the petition and the notice).

Finally, 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.

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.

Conclusion

16 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, and

remand with direction to permit the petitioner to amend the petition, should he

choose, and to permit M.S. and the other co-respondents to raise such defensive

matters as each may consider appropriate.11 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.

Timeline 11 M.S., through his private counsel, is already deemed to have denied the allegations within the petition. Fla. Prob. R. 5.550(b)(2).

17 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 seeks 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]

18 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 report and "high presumption of incapacity" including 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

19 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

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

ROTHENBERG, 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).

21 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 the 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.

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)

22 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

23 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 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, 2015.12

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

12The fifteen-day deadline was extended to December 28, 2015, due to the Christmas holiday.

24 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).

25 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 member’s 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

26 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

27 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

28 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.

29 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.13

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 13 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.

30 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

31 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

32 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,

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.

33 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, the Legislature stated its intent 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

34 744.331, 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

35 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

36 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

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

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

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

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

38 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

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).

39 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 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

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

40 “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.