Sarfaty v. M.S.

Sarfaty v. M.S., --- So. 3d --- (Fla. 3d DCA 2017)

In this guardianship decision, the Court considered how strictly to interpret F.S. 744.331 and FPR 5.550, dealing with the required procedures following the filing of a petition to determine incapacity. It held in situations like this one, where the procedural deficiencies were a result of actions of the parties and occurred with everyone's knowledge, such deficiencies are not enough to result in a dismissal of the petition without leave to amend.

The alleged deficiencies were twofold.  First, counsel for the AIP argued that the petition should be dismissed because of the alleged failure of court-appointed counsel to read the petition and form notice to the AIP.  Second, counsel argued that the petition should be dismissed because the examining committee members did not file their reports within the fifteen day period required by F.S. 744.331(3)(e).  The trial court dismissed the petition and ruled orally that an amendment to the petition would not be allowed.

The Court reversed, finding that while counsel's arguments may constitute legal defenses to the petition, they failed to establish the legal insufficiency of the petition.  Appellants argued that substantial compliance with the statute and rule were insufficient based on the holdings of 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).  The Court held that even though In re Fey states that "compliance with section 744.331 and rule 5.550 is mandatory," the non-compliance here caused no fundamental error- there was no evidence presented that the court-appointed counsel did not actually read the petition to the AIP, the AIP substituted in independent counsel fairly quickly, private counsel and other family members were present for the examining committee meetings and the matter was continued by agreement of all parties.


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