IN RE MILDRED BASS KEENE, W/F AGE 75; DOB 7-15-1900
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The trial court dismissed a petition seeking to have a 75-year-old woman declared incompetent after an examining committee reported she was competent. The appellate court affirmed, holding that under Florida law, when an examining committee reports the alleged incompetent person is competent, the trial court must dismiss the petition without further proceedings.
The trial court did not err in dismissing the petition. Under the controlling statute, when an examining committee reports that the alleged incompetent person is not mentally or physically incompetent, the court shall dismiss the petition. The statute's mandatory language requires strict compliance, and the trial judge properly followed this legislative mandate.
[1] A petition for incompetency must be dismissed when the examining committee's report finds the alleged incompetent to be competent, as mandated by statute.
[2] Proceedings to determine a person's competency are governed by statute, and statutory procedures must be strictly followed.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the legal principle that competency proceedings are governed by strict statutory requirements.
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Join FLexlaw to unlock all legal intelligenceMildred Bass Keene, age 75, was the subject of a petition for incompetency filed by her daughters. An examining committee conducted an evaluation and …
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DOWNEY, Judge.
The trial judge dismissed a Petition for Incompetency upon the filing of a report of the examining committee reporting that the alleged incompetent was indeed competent.
Appellants are daughters of Mildred Bass Keene, the alleged incompetent. They contend the trial court erred in placing too much emphasis upon the report of the examining committee and in not completing the hearing which was held pursuant to Section 744.331(4), Florida Statutes (1975). It is appellants’ position that the report of the examining committee is simply evidence to be considered by the trial judge along with other evidence bearing upon the competency of the person involved. For authority supporting that contention, appellants cite Opinion of the Attorney General 050-583. However, Section 394.22(6)(b), Florida Statutes (1950), was the statute in effect at that time and it provided that “the court may without taking any further action terminate the proceedings and dismiss the application.” Whereas, the statute controlling these proceedings in pertinent part provides:
“If the report of the examiners is that the alleged incompetent is not mentally or physically incompetent, the court shall dismiss the petition.” (Emphasis added.)
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. 41 Am.Jur.2d, Incompetent Persons, § 9.
The trial court strictly followed the mandate of the Legislature in dismissing the petition for incompetency and thus did not err in entering the order dismissing appellants’ petition which sought to have Mildred Bass Keene declared to be incompetent.
AFFIRMED.
ANSTEAD, J., and FOGLE, HARRY W., Associate Judge, concur.
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Summer Jasser v. Saadeh, 97 So. 3d 241 (Fla. 4th DCA 2012)…extend that time. Compliance with the requirements of section 744.331 is mandatory and the trial court’s failure to adhere to those requirements constitutes reversible error. Id. at 608-09. See § 744.331(4), Fla. Stat. (2008); see also In re Keene, 343 So. 2d 916, 917 (Fla. 4th DCA 1977) (“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.”) (ci…
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Levine v. Levine, 4 So. 3d 730 (Fla. 5th DCA 2009)…Mathes v. Huelsman, 743 So. 2d 626, 627 (Fla. 2d DCA 1999) (holding once examining committee concluded that alleged incapacitated person had full capacity, trial court was required to dismiss petition to determine incapacity); see also In re Keene, 343 So. 2d 916 (Fla. 4th DCA 1977).1 The trial court also ordered Dr. Levine to pay the examining committee’s fees. Ms. Stimmel concedes error. While section 744.331(7)(a) allows the trial court to award members of the examining committee reasonable fees, subpara…
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Rothman v. Rothman, 93 So. 3d 1052 (Fla. 4th DCA 2012)…onstitutional tenants [sic] of judicial power, procedural due process, substantive due process, and access to courts.” We agree with the AIP and grant the petition. We have held that section 744.331(4) should be strictly construed. See In re Keene, 343 So. 2d 916, 917 (Fla. 4th DCA 1977) (finding no error in the trial court’s dismissal of the petition based solely on the examining committee’s report without consideration of other evidence). “Proceedings to determine the competency of a person are generally c…
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