        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            JAMES S. COOK,
                               Appellant,

                                    v.

                   JOHN COOK and ROBERT COOK,
                            Appellees.

                             No. 4D17-1637

                          [September 20, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Rosemarie Scher, Judge; L.T. Case No. 50-2016-MH-
003313-XXXX-NB.

  Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
Fourth District, West Palm Beach, for appellant.

   Anya Van Veen, Jeffrey H. Skatoff, and Brian M. Spiro of Clark Skatoff,
P.A., Palm Beach Gardens, for appellees.

GROSS, J.

   The prospective ward in this case was found to be totally incapacitated
and the lower court imposed a plenary guardianship upon him. We reverse
because we find that the members of the examining committee reached
their capacity and guardianship determinations without the benefit of a
comprehensive examination of the prospective ward.

   The prospective ward was James Cook, a 67-year-old man.           Cook’s
brothers filed the petition to determine incapacity alleging that:

   •   Cook had been “living like a recluse/hermit, boarded up inside his
       condo, not letting anyone inside for several years;”

   •   A kitchen fire prompted the neighbors to call the authorities and
       Cook was subsequently “Baker Acted to Fair Oaks [and was]
       undergoing daily assessments by psychiatrists;”
   •   Cook had been mismanaging his life;

   •   Cook’s personal health and hygiene were extremely bad;

   •   Cook had been in several car and motorcycle accidents;

   •   Cook’s condominium was in foreclosure and he owed money “to
       many;” and

   •   Cook was unable to plan for his affairs or make practical decisions.

   The petitioners attached a report prepared by the Palm Beach County
Sheriff’s Office that described the condition of Cook’s condominium in
cringing detail upon which it is unnecessary to elaborate here.

   The petitioners requested “that an examination be made as to the
mental and physical condition of the alleged incapacitated person as
provided by law, and that an order be entered determining the mental and
physical capacity of said person.” The petitioners sought a plenary
guardianship for Cook.

   The guardianship court issued an order appointing a three-member
examining committee pursuant to section 744.331(3)(a), Florida Statutes
(2017). Each member was ordered to “make such examination of [Cook]
as will enable them to ascertain thoroughly [his] mental and physical
condition at the time of the examination.”

   The members of the examining committee timely submitted their
reports, each recommending a plenary guardianship for Cook. The reports
were placed into evidence without objection at the hearing, and the
petitioners called each member of the committee to testify.

   The committee’s designated medical doctor was a primary care
physician (the “doctor”). He interviewed Cook and also spoke with the
social worker at Fair Oaks, another member of the examining committee,
and Cook’s brother. He reviewed the petition, the police report, Cook’s
medical chart from Fair Oaks, and a note from a physician at Medicana
(the facility to which Cook was transferred after his discharge from Fair
Oaks). The doctor testified that Cook was seen by a psychiatrist for two
weeks at Fair Oaks and had a single psychiatric consultation at Medicana.
The doctor concluded that Cook was “certainly disturbed” – that he had
an unspecified psychosis, cognitive issues, lack of self-awareness, and his
“reality testing” was poor. The doctor testified that Cook was not being


                                    -2-
treated for his psychosis – his primary diagnosis. The medication he was
on was directed at anxiety, depression and pain. The doctor testified that
he did not perform either a physical or mental health examination of Cook.

   The second member appointed to the examining committee was a
layperson. Her examination of Cook consisted of interviewing him twice;
speaking with his family members, two of his neighbors, a friend, and the
social worker at Fair Oaks; reviewing his medical record from Fair Oaks;
and receiving a list of his current medications and a note from his
psychiatrist, which she admitted she could not read. The layperson
testified that Cook was in denial about his major depressive disorder.

   The third member of the examining committee was a licensed
psychologist (the “psychologist”).      His examination consisted of
interviewing Cook twice; reviewing his medical records from Fair Oaks, the
guardianship petition, the order of appointment, and a letter from one of
the brothers; speaking to the other brother on the phone; consulting with
Cook’s primary care doctor; and giving Cook a Mini-Mental State
Examination (MMSE-2) on two occasions. The psychologist testified that
based on his examination, he concurred with the diagnosis Cook received
upon his discharge from Fair Oaks − that Cook suffered from “major
depressive disorder, unspecified anxiety disorder, and psychotic disorder
not otherwise specified.”

   The psychologist admitted that he did not perform either a physical
exam or a comprehensive mental health exam. In fact, he recommended
that Cook be seen by an internist, and testified that neurological and
neuropsychological exams were necessary to rule out a neurocognitive
disorder. He admitted that the MMSE-2 he performed is “the briefest of
screening instruments for neurocognitive impairment,” and that Cook’s
results revealed that he had no cognitive impairment.

   Cook’s testimony demonstrated his lack of cognitive impairment. When
asked why he was feeling “poorly” at the time the psychologist conducted
his second interview, Cook explained:

   I think most people don’t understand, and I didn’t, how bad it is to
   be in a facility like this. I mean, I felt that, you know, the situations
   are that you have people screaming day and night. You can’t get
   your sleep. You have people that are incontinent. And many other
   things that make having clarity of mind and so forth difficult.

   And at the same time, I was conscious of the situation I’m in of this
   process for guardianship can affect your entire life and all of your

                                     -3-
   rights, all of your property. And I was having very little say and very
   less knowledge of what was going on around me. And then the
   outcome depends on these quick little evaluations. I was very
   anxious because I felt isolated from the world, from knowledge of
   what was going on, and there was a lot of weight on the outcome.
   So I was anxious and concerned.

   In response to follow-up questions, he detailed some of the behaviors
exhibited by the other patients at Medicana. He also discussed the
conduct of the night nurses insofar as they made it difficult for him to get
quality sleep.

   The prospective ward’s testimony reveals that he was not only
cognizant, but painfully aware and understandably anxious and afraid
that the outcome of the guardianship proceeding would, as he explained,
“take away all of my civil liberties and all of my legal rights . . . and take
away all of my choices and freedoms.”

    “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, the statute must be strictly
followed.” In re Keene, 343 So. 2d 916, 917 (Fla. 4th DCA 1977). The
relevant statute is section 744.331, Florida Statutes (2017).

   In 1989, the Legislature considered the state of guardianship law in
Florida and the impact a guardianship had on the ward. The Legislature
found:

             Those persons currently adjudicated incompetent
    typically retain fewer rights than are retained by convicted felons,
        since most guardianship orders remove from the individual
       basic rights such as the rights to vote, own property, marry,
               consent to medical treatment, and contract . . .

Preamble, Ch. 89-96, Laws of Fla.

   The Legislature recognized that Florida’s guardianship law contained
“antiquated and imprecise statutory provisions,” which resulted in
thousands of prospective wards being denied due process of law. Id. As a
result of these findings, the Legislature revised the law including setting
forth “very specific procedures which shall be followed to determine
incapacity.” In re Fey, 624 So. 2d 770, 771 (Fla. 4th DCA 1993). The
Legislature’s findings support a strict construction of the guardianship
statute.

                                     -4-
    Under the statute, the examining committee’s role is to assess the
abilities of the prospective ward and advise the court. The statute requires
that each member of the examining committee examine the prospective
ward. § 744.331(3)(e), Fla. Stat. The examination must include a
comprehensive examination. Id. at § 744.331(3)(f). “The comprehensive
examination report should be an essential element, but not necessarily the
only element, used in making a capacity and guardianship decision.” Id.
If indicated, the comprehensive examination must include a physical and
mental health examination.         Id.   If a mandatory aspect of the
comprehensive examination is not indicated or cannot be accomplished,
the committee member must expressly explain the reason for the omission.
Id.

      The precise language used by the Legislature reads:

         The examination of the alleged incapacitated person must
         include a comprehensive examination, a report of which shall
         be filed by each examining committee member as part of his
         or her written report. The comprehensive examination report
         should be an essential element, but not necessarily the only
         element, used in making a capacity and guardianship
         decision. The comprehensive examination must include, if
         indicated:

         1. A physical examination;
         2. A mental health examination; and
         3. A functional assessment.

         If any of these three aspects of the examination is not
         indicated or cannot be accomplished for any reason, the
         written report must explain the reasons for its omission.

Id.

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

      (1) An examination by each member of the committee;

      (2) That the examination must include a comprehensive examination;
      and

      (3) That the comprehensive examination must include, if indicated, a
      physical exam, a mental health exam, and a functional assessment.

                                     -5-
    The statute does not require three separate comprehensive
examinations – rather, the statute requires a comprehensive
examination. 1 The statute also does not specify who should perform the
comprehensive examination. This leads us to conclude that the requisite
three parts of the comprehensive examination could be performed by
different specialists. We find that the statute is unambiguous, however,
in its mandate that: a comprehensive examination be performed; a report
of the comprehensive examination shall be filed; and the report should be
an “essential element” in making the capacity decision.

   Here, none of the members of the examining committee performed a
physical examination of Cook; none filed a report of a physical exam of
Cook; and none explained the reason for their omission of the requisite
physical exam. Not only is the physical examination mandated by the
guardianship statute, a physical exam could reveal a physiological reason
for Cook’s behaviors. Because a person’s physical condition can have a
profound impact on his mental health, a physical examination should be
made in every case unless there is an express finding by the examiner that
the exam was not indicated or could not be accomplished for any reason.
The committee’s failure to include the physical examination in this case
means the members reached their capacity determinations and advised
the court without considering all of the “essential elements.”

    We also find that the requisite mental health examination was not


1The dissent argues that one construction of the statute is that three separate
comprehensive examinations must be performed. We agree with the dissent that
such a construction would lead to an absurd result. While requiring three
comprehensive examinations may be untenable, at least one is statutorily
mandated. What happened in this case was not right – that the members of the
examining committee, including a layman, rendered “expert” advice to the court
on the capacity of the prospective ward without the benefit of any physical or
mental health examination.

We think that the dissent is confusing the mandated “comprehensive
examination” with the individual members’ examinations. Each member must
perform his or her own individual examination of the prospective ward. These
examinations include meeting the prospective ward and perhaps talking to family
and friends, interviewing caregivers and nurses, reviewing medical records,
inspection of living conditions, et cetera. In addition, the member’s examination
must include a mental health exam, a physical exam, and a functional
assessment. These three parts of the comprehensive examination do not need to
be performed by the member, but the results must be included in the member’s
examination before the member can render an opinion. Thus a comprehensive
examination report is a mandated part of each member’s individual examination.

                                      -6-
performed. A prospective ward deserves a thorough mental health
examination to determine whether his condition is curable or treatable.
We recognize that here, the psychologist administered the MMSE-2,
reviewed records from the Fair Oaks psychiatrist, spoke with Cook’s
primary care physician, and interviewed Cook for nearly two hours. In a
simpler case, this exam might be sufficient. This case, however, is not a
simple case, and, significantly, the psychologist testified that Cook needs
further evaluation. If a prospective ward needs further evaluation, fairness
dictates that the evaluation occur before a court is asked to make a
capacity determination.

    We are not reversing the incapacity decision based on a reweighing of
the evidence, as argued by the dissent. We are reversing for the failure of
the members of the examining committee to base their reports on the type
of information required by the statute. The members of the examining
committee failed to complete all required parts of their examination. They
were without authority to make their reports. See Beckham v. Cline, 10
So. 2d 419, 421 (Fla. 1942). It was error for the trial court to find Cook
incapacitated in the absence of a comprehensive examination mandated
by the statute and it was error for the court to rely on the members of the
examining committee where they reached their conclusions without
considering all of the statutorily-mandated factors. We express no opinion
on Cook’s capacity and remand so the proper procedures can be followed
before any opinions as to Cook’s capacity are rendered.

   We note that appellees do not argue that the requisite physical and
mental health examinations were performed in this case. Instead, they
argue that Cook’s remedy was to object to the reports of the examining
committee and move to strike them. Because Cook allowed the reports
into evidence without objection, the petitioners argue that he has waived
any objection to the procedure followed by the examiners. See generally
Levine v. Levine, 4 So. 3d 730, 731 (Fla. 5th DCA 2009). We disagree.

   Each report contains an express declaration by the examiner that he or
she “made a comprehensive examination” of the prospective ward. The
testimony, on the other hand, revealed that none of the examiners made
the requisite comprehensive examination. Because Cook could not have
known what the members would say before the hearing, he did not waive
his right to object to the examinations by failing to object to the reports
themselves.

   A petition to determine incapacity exposes the prospective ward to the
possibility of losing his personal autonomy. Recognizing the vulnerability
of alleged incapacitated persons, the Legislature placed safeguards in the

                                    -7-
statute to ensure that precious human rights were not removed without
due process.    Among those safeguards is the requirement that a
comprehensive examination be performed in every case. Only upon
consideration of the results of the requisite examinations can the
examiners make their determinations as to the capacity of an individual
and advise the court.

   The stakes could not be higher for the prospective ward. For this
reason, those who participate in the process must strictly adhere to
statutory mandates.

    Here, the court found Cook incapacitated in the absence of the
statutorily-required comprehensive examination. This was reversible
error. On remand, the case should proceed from the appointment of a new
examining committee. The order appointing the examining committee
should track the language of the statute, mandating all parts of the
comprehensive examination yet giving the committee members the
flexibility to omit, with explanation, any part that is not indicated or could
not be accomplished. 2

   Cook’s status shall remain unchanged pending the outcome of the
incapacity proceedings on remand.

    Reversed and remanded for further proceedings.

KLINGENSMITH, J., concurs.
CONNER, J., dissents with opinion.

CONNER, J., dissenting.

   I respectfully dissent from the majority opinion. Boiled down to its
essence, the majority is reversing the trial court’s judgment regarding Mr.
Cook’s capacity because none of the examining committee members
performed “a physical examination” or “a mental health examination.”
Despite the fact that the legislature did not define those terms or the


2 The dissent ponders at length the meaning of the words “if indicated,” and
concludes that “the statutory language ‘if indicated’ was meant for the judge to
give guidance as to the extent of the capacity evaluation to be performed.” We do
not believe the trial judge, at the outset of a case and armed only with a one-
sided petition, would be in any position to determine which parts of the
comprehensive examination are “indicated.” The statute mandates that all parts
of the comprehensive examination be performed and that if any part is omitted,
for any reason, the examining committee member must explain the omission.

                                      -8-
parameters of those examinations, the majority appears to apply a
technical definition of those concepts, as one would find in a medical
dictionary, rather than using the plain definition gleaned from an ordinary
dictionary. See Goble v. Frohman, 901 So. 2d 830, 833 (Fla. 2005) (“If a
statutory term is not defined, its plain and ordinary meaning generally can
be ascertained by reference to a dictionary.”).

    There are multiple problems with the analysis used by the majority.
Section 744.331(3)(a), Florida Statutes (2017), governing the composition
of examining committees provides that:

      One member must be a psychiatrist or other physician. The
      remaining members must be either a psychologist,
      gerontologist, another psychiatrist, or other physician, a
      registered nurse, nurse practitioner, licensed social worker, a
      person with an advanced degree in gerontology from an
      accredited institution of higher education, or other person
      who by knowledge, skill, experience, training, or education
      may, in the court’s discretion, advise the court in the form of
      an expert opinion.

Id. The majority states that: (1) “[t]he statute requires that each member
of the examining committee examine the prospective ward,” and (2) “the
examination must include a comprehensive examination,” and quoting the
statute that (3) “the comprehensive examination must include, if indicated,
[a] a physical examination, [b] a mental health examination, and [c] a
functional assessment,” but then reaches the incompatible conclusion
that “[t]he statute does not require three separate comprehensive
examinations—rather,       the   statute     requires   a    comprehensive
examination.” (emphases in original).

    The properly constructed syllogism would be: if (1) “[t]he statute
requires that each member of the examining committee examine the
prospective ward,” and (2) “the examination must include a comprehensive
examination,” and (3) “the comprehensive examination must include, if
indicated, [a] a physical examination, [b] a mental health examination, and
[c] a functional assessment,” then each examining committee member must
perform “a physical examination,” “a mental health examination,” and “a
functional assessment.” However, such a construction of the statute would
be absurd. It would be unreasonable to believe the legislature intended
for a social worker or “other person” to perform a physical examination or
mental health examination as defined by a medical dictionary.




                                   -9-
   Additionally, in analyzing the requirements of section 744.331(3)(f),
Florida Statutes (2017), the majority ignores other subsections of section
744.331(3). For example, section 744.331(3)(c) provides that:

      (c) Each person appointed to an examining committee must
      file an affidavit with the court stating that he or she has
      completed the required courses or will do so no later than 4
      months after his or her initial appointment. Each year, the
      chief judge of the circuit must prepare a list of persons qualified
      to be members of an examining committee.

§ 744.331(3)(c), Fla. Stat. (2017) (emphasis added). Likewise, the majority
ignores section 744.331(3)(d), which provides that:

      (d) A member of an examining committee must complete a
      minimum of 4 hours of initial training. The person must
      complete 2 hours of continuing education during each 2-year
      period after the initial training. The initial training and
      continuing education program must be developed under the
      supervision of the Office of Public and Professional Guardians,
      in consultation with the Florida Conference of Circuit Court
      Judges; the Elder Law and the Real Property, Probate and Trust
      Law sections of The Florida Bar; and the Florida State
      Guardianship Association.

§ 744.331(3)(d), Fla. Stat. (2017) (emphases added).

    Based on subsections (3)(c) and (d), I presume the trial court appointed
properly trained persons to act as the examining committee. Thus, I have
difficulty concluding that all three examining committee members failed to
act as properly trained. I suppose that one could conclude that all three
members missed the mark if one assumes that the legislature intended “a
physical examination” or “a mental health examination” as referring to
concepts in a medical dictionary, rather than an ordinary dictionary.

  I find section 744.331(3)(f) ambiguous. To expose the ambiguity, both
subsections (3)(e) and (f) must be considered together:

      (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. In addition to the
      examination, each examining committee member must have
      access to, and may consider, previous examinations of the
      person, including, but not limited to, habilitation plans,

                                    - 10 -
      school records, and psychological and psychosocial reports
      voluntarily offered for use by the alleged incapacitated person.
      Each member of the examining committee must file his or her
      report with the clerk of the court within 15 days after
      appointment.

      (f) The examination of the alleged incapacitated person must
      include a comprehensive examination, a report of which shall
      be filed by each examining committee member as part of his
      or her written report. The comprehensive examination report
      should be an essential element, but not necessarily the only
      element, used in making a capacity and guardianship
      decision. The comprehensive examination must include, if
      indicated:

      1. A physical examination;
      2. A mental health examination; and
      3. A functional assessment.
      If any of these three aspects of the examination is not indicated
      or cannot be accomplished for any reason, the written report
      must explain the reasons for its omission.

§§ 744.331(3)(e) and (f), Fla. Stat. (2017) (emphases added).

    It is unclear to me the majority’s view of the meaning of “if indicated.”
To me, the obvious question is: “if indicated” by whom? Possibly the
majority is of the view that “if indicated” refers to “by the circumstances,”
but that in turn leads to the question of “as determined by whom”—the
trial judge or the individual examining committee member?

    I contend the legislature meant by the “if indicated” language that the
trial judge is to give guidance to the examining committee as to the extent
of the examinations to be conducted pursuant to the statute. Such an
interpretation makes sense, if one considers that a family member may
petition for the appointment of a limited or plenary guardian, depending
on the circumstances of the alleged incapacitated person. For example, a
quadriplegic may need a limited guardian due to physical incapacities, but
a mental health assessment or functional assessment may not be
necessary, based on the petition filed. I doubt that in such a circumstance
the legislature intended that the quadriplegic would have to undergo the
demeaning experience of a mental health examination or a functional
assessment. Additionally, such an interpretation of the “if indicated”
language would allow the trial court to direct a medical doctor to perform
a physical examination (within the meaning of a medical dictionary) and a

                                    - 11 -
psychiatrist or psychologist to perform a mental health examination
(within the meaning of a medical dictionary), and would more logically
explain why all three examining committee members do not have to
perform all three “aspects of the examination.”

   If I am correct that the statutory language “if indicated” was meant for
the judge to give guidance as to the extent of the capacity evaluation to be
performed, the order appointing the examining committee in this case
must be considered. The order stated:

      Within a reasonable time after service of this Order, each
      [examining committee] member is required to secure the
      presence of JAMES S. COOK, the alleged incapacitated
      person, and to make such examination of her [sic] as will
      enable them to ascertain thoroughly her [sic] mental and
      physical condition at the time of the examination. If they
      consider her [sic] to be incapacitated, they shall determine
      whether she [sic] requires a Plenary or Limited Guardianship.
      They shall determine the alleged incapacitated person’s ability
      to exercise those rights which the Petition to Determine
      Incapacity has requested to be removed.

(emphasis added). It does not appear from the language of the order that
the trial judge “indicated” that a physical or mental health examination,
as defined by a medical dictionary, was needed.

    The trial judge considered extensive evidence in this case. Not only did
the trial court receive testimony from all three examining committee
members, but also testimony from Mr. Cook’s siblings and Mr. Cook. The
trial court also considered, without objection, the hearsay testimony
regarding Mr. Cook’s past medical and mental health history, as well as
numerous pictures of his apartment. The trial court specifically found the
testimony of Mr. Cook provided clear and convincing evidence of his
incapacity. The evidence clearly showed that Mr. Cook was not taking his
mental health medication, which led him to create a situation causing a
fire in his apartment. When the first responders arrived, he had to be
Baker Acted. At that time, he was malnourished, living in squalor, and
did not understand what was going on. The majority is apparently
impressed by Mr. Cook’s seemingly coherent testimony at the hearing
(arguably after receiving some benefit from the Baker Act), but the trial
court’s order makes it clear the trial court was not so impressed. The trial
court’s order makes it clear that trial court determined that Mr. Cook had
no insight as to the circumstances leading to his being Baker Acted. In



                                   - 12 -
my view, it would be reweighing the evidence from a cold record to reverse
the trial court.

   For the above reasons, I respectfully dissent.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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