If you have filed a petition to determine the capacity of a loved one and a petition to appoint a guardian, and the petitions are contested, you have to be careful. There is a very subtile trap that can occur when the hearing is contested. Usually, when the petition to determine incapacity (PTDI) is filed, the court will: appoint an attorney for the alleged incapacitated person (AIP), appoint an examining committee to evaluate the AIP and set a hearing on the petition to determine incapacity. However, if the PTDI is contested, often the hearing on the petition will be continued because the hearings are usually only set for a short period of time since most PTDI are not contested. The attorney appointed to the AIP can make this happen by filing an objection on the examining committee reports as allowed by Fla. Stat. 744.331(3)(i)
So what happens if the PTDI you filed is heard several months later (not uncommon given the court schedule). If there is a hearing on an incapacity petition and the reports are several months old, then there is a real danger that the attorney for the AIP could show up with an expert who says the AIP has improved. If there is current expert testimony saying the AIP has improved then under Graham V. Fla. Dept. of Children & Families 970 So.2d 438 (Fla. 4th DCA 2007) the court should dismiss the petition. So what does one do? After all we who work in this field know that unless the person is comatose, it is likely that some expert for hire will say what the attorney for the AIP wants to hear. The answer is in the next blog on incapacity proceedings or call Cody & Linde, P.A. and speak with attorney Matthew Linde today.