Gort v. Gort, --- So.3d --- (Fla. 4th DCA 2016)
In this decision, the Court considered, among other things, whether a petition to determine incapacity may be voluntarily dismissed. The statutes governing guardianship do not expressly address this issue. The statute states that once a petition is filed, the court shall set the matter for hearing within certain time constraints. F.S. 744.331. It also states that a court shall dismiss a petition if the examining committee members conclude the person is not incapacitated. But the Court found that the statute is silent on whether a court is required to hold an adjudicatory hearing every time a petition is filed, and is silent on whether a party may voluntarily dismiss a petition to determine incapacity.
The Court found that the Jasser v. Saadeh decision, 97 So.3d 241 (Fla. 4th DCA 2012) was distinguishable from this case. In Jasser, the court distinguished a voluntary dismissal from an agreed settlement and mutual dismissal. The Court held that the Jasser court did not hold that a person cannot voluntarily dismiss a petition once filed.