       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

                          [November 28, 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.

   Amy Singer Borman, General Counsel, Fifteenth Judicial Circuit, West
Palm Beach, for Honorable Krista Marx, Chief Judge of the Fifteenth
Judicial Circuit; Joseph M. D’Amico, General Counsel, Seventeenth
Judicial Circuit, Fort Lauderdale, for Honorable Jack Tuter, Chief Judge
of the Seventeenth Judicial Circuit; and Patricia L. Gladson, General
Counsel, Eleventh Judicial Circuit, Miami, for Honorable Bertila Soto,
Chief Judge of the Eleventh Judicial Circuit.

ON APPELLANT’S MOTION FOR REHEARING AND/OR CLARIFICATION
     AND NON-PARTY JUDGES’ MOTION FOR CLARIFICATION

GROSS, J.

   We grant appellant’s motion for rehearing and/or clarification. We
agree that the instruction in the majority opinion that Cook’s status
“remain unchanged pending the outcome of the incapacity proceedings on
remand” is inconsistent with this court’s finding that the judgment placing
Cook in a plenary guardianship was not authorized by the applicable
statute. Appellee does not oppose the motion. Accordingly, we strike the
last sentence of the majority opinion.

   The Chief Judges of the Eleventh, Fifteenth, and Seventeenth Judicial
Circuits have moved for clarification concerning the extent of the physical
examination that must be undertaken by the examining committee. We
treat the motion as an amicus filing. See Fla. R. App. P. 9.370(a). Neither
party has filed a response to the motion.

    Neither the statute nor the majority opinion places the onus on any
individual member of the committee to perform the indicated parts of the
examination. The three aspects of a comprehensive examination identified
by the legislature may be performed by qualified persons who are not
members of the examining committee. As do experts in court, the
members of the committee may rely on these reports to satisfy the
comprehensive examination requirement of the statute. As the statute
mandates, if any part of a comprehensive examination is omitted, the
committee member must explain the reason for the omission. This
procedure will comply with the statute while giving the circuit judges the
critical information needed to decide the capacity issue.

   We are sensitive to the point of the Chief Judges that funding may be
inadequate to comply with the statutory mandate. The legislature is the
only proper forum to weigh funding considerations against the interests of
the various stakeholders in a guardianship.

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

CONNER, J., dissenting.

   I again respectfully dissent from the majority’s opinion in response to
appellant’s motion for rehearing or clarification, for the same reasons
expressed in my initial dissent.

    After the original opinion was published, the Chief Judges of the
Eleventh, Fifteenth, and Seventeenth Judicial Circuits filed a motion for
clarification in this Court. The motion sought clarification as to “whether,
in every case, a physical examination must be expansive enough to identify
any physiological conditions that may have contributed to the [alleged
incapacitated person]’s mental condition.” I respectfully submit that the
majority’s clarification in response to the motion creates confusion rather
than clarity.


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   The clarification opinion conflicts with the original majority opinion and
its very specific declaration of the legislature’s intent regarding the
mandatory duties of the examining committee. In the original opinion, the
majority reversed the trial court because:

      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.

Yet curiously, and with no citation to authority, the clarification opinion
states that “[t]he three aspects of a comprehensive examination identified
by the legislature may be performed by qualified persons who are not
members of the examining committee.” (emphasis added). The justification
for this clarification proposition is presumably the next sentence: “As do
experts in court, the members of the committee may rely on these reports
to satisfy the comprehensive examination requirement of the statute.”

    In the instant case, a short time before the evaluation conducted by the
physician member of the examining committee, Cook was admitted to a
hospital. The physician member testified that as part of his evaluation of
competence, he reviewed the medical chart from the hospital. He further
testified the treating physician at the hospital was very thorough and
complete in documenting the medical evaluation and treatment of Cook at
the hospital. Yet, the majority fails to explain why the physician member
of the examining committee, as an expert, was not entitled to rely on his
review of the medical records generated by Cook’s recent hospital stay in
lieu of conducting the physical examination himself. In light of the strong
pronouncements in the original opinion warranting reversal for the
examining committee’s failure to conduct a physical examination, the
clarifying opinion seems inconsistent.

   The clarifying opinion also reasserts a point made in the original
opinion: “As the statute mandates, if any part of the comprehensive
examination is omitted, the committee member must explain the reason
for the omission.” Presumably, the majority views this proposition as a
sort of safety valve. The majority views the “if indicated” phrase in the
statute as applying to the perspective of the examining committee (rather
than the perspective of the circuit judge ordering the examination, a
viewpoint I asserted in my original dissent). It appears the majority is
satisfied that the members of the examining committee can decide a
physical examination, mental examination, or functional assessment is
not “indicated” (even though each component is a “required part” and
“mandatory aspect” of a comprehensive examination, according to the

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original majority opinion) for an alleged incompetent person, so long as the
committee explains why the assessment was not done. According to the
clarifying opinion, such explanation by the committee will constitute a
“procedure” that “will comply with the statute while giving the circuit
judges the critical information needed to decide the capacity issue.”

   In the original opinion, the majority stated:

      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.

It is that language which prompted the clarification by the Chief Judges.
The majority’s clarification that “[t]he three aspects of a comprehensive
examination identified by the legislature may be performed by qualified
persons who are not members of the examining committee,” will be of some
relief to the Chief Judges in seeking to retain physicians and psychiatrists
on examining committees, but I suspect the relief will be limited. A
significant portion of the cases in which a capacity determination is sought
involve persons who are alleged to be incapacitated and are indigent or
have no health care insurance. In such cases, it is likely the alleged
incapacitated person has not seen a health care provider for some time.
Additionally, for many alleged incapacitated persons who routinely see
treating physicians, it is questionable how many treating physicians are
documenting in their medical records the extent to which physical
conditions are contributing to mental health issues.

  For the above reasons, I continue to dissent from the majority opinion
and the clarifying opinion.

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