Sometimes, family members file a Petition for Incapacity over a relative. Sometimes, the person filing the Petition for Incapacity wants to withdraw the pleading. Perhaps the Petition was misguided, or the family is able to work things out without the benefit of the guardianship system taking control over the alleged incapacitated person.
One would think that the dismissal of a Petition for Incapacity would be allowed. Two recent cases from Florida appellate courts come to different conclusions, however. The most recent case, Katke_v_Bersche, permits the withdrawal of a Petition for Incapacity. The facts of the case are somewhat common. The daughter of the alleged incapacitated person, Bersche, filed a Petition for Incapacity. Shortly thereafter, the guardianship court appointed an emergency temporary guardian (“ETG”), a professional guardian named Kardos. A short time later, Bersche withdrew the Petition for Incapacity. The professional guardian Kardos then filed her own petition for incapacity in the same proceeding. In mandating the dismissal of the case, the Court explained as follows:
A party may voluntarily dismiss any claim, and such a dismissal, if accepted by the trial court, deprives the court of jurisdiction over the subject matter of the claim dismissed.” Cutler v. Cutler, 84 So. 3d 1172 (Fla. 3d DCA 2012). The plaintiff’s right to voluntarily dismiss its own lawsuit is almost absolute, with exceptions for fraud on the court and child custody. Tobkin v. State, 777 So. 2d 1160, 1162 (Fla. 4th DCA 2001). Here, there was no allegation of fraud. Further-more, the trial court specifically found that the original petition was withdrawn and that all motions attacking the peti-tion were therefore moot. Once the trial court accepted the withdrawal, it lost jurisdiction over the case. Thus, the court could not find that Kardos had standing to file the Second Petition in the same case or that the parties could set hearings on outstanding discovery motions.
In the earlier case, Jasser_v_Saadeh, 97 So.2d 241 (4th DCA 2012), the Petition for Incapacity was filed. After some litigation, but before the alleged incapacitated person was adjudicated incapacitated, the parties (the AIP, children, and ETG) purportedly settled the case and sought to dismiss the proceedings. After the settlement fell apart, an appeal from many of the orders of the guardianship court was had. The appellate court held that the Petition for Incapacity could not be dismissed, as follows:
The statutes and rules do not provide for the dismissal of a petition to determine the incapacity of an individual before the actual determination of the issue. In Borden v. Guardianship of Borden-Moore, 818 So. 2d 604 (Fla. 5th DCA 2002), the court held that a petition for guardianship could not be dismissed before receiving the report of the examining committee. Section 744.331 contemplates that once a facially sufficient petition to determine incapacity has been filed, the court must ensure that the alleged incapacitated person has an attorney, that an appropriately qualified examining committee promptly examines the person, and that an adjudicatory hearing be set no more than fourteen days after the filing of the report of the examining committee, unless good cause is shown to 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.”) An attorney for the person may not waive an adjudicatory hearing when required. See In re Frederick, 508 So. 2d 44, 45 (Fla. 4th DCA 1987).There is good reason for such a rule. If a person is incompetent, it is the duty of the court to assure that person’s protection and his or her autonomy is respected to the greatest extent possible. See § 744.1012, Fla. Stat. (2008). To permit dismissal of proceedings where a party is in fact incompetent may endanger that person. On the other hand, without knowing whether the person is actually incompetent, the court could restrict a person’s independent ability to deal with his property and place it out of the control of a person who may be completely capacitated. The guardianship statutes and rules should not be used to protect competent persons from their spendthrift ways or to protect their beneficiaries. An individual who is competent should not be subject to the control of the courts through guardianship proceedings, temporary or plenary.That the order dismissing the plenary guardianship proceedings was a nullity is further supported by the fact that the order did not dismiss the petition for emergency temporary guardian, revoke the letters of guardianship, or terminate the same. Section 744.3031(1), Florida Statutes (2008), permits the appointment of an ETG only after a petition for determination of incapacity has been filed. For an ETG to be appointed there must be a pending determination of incapacity. As such, the court could not dismiss the petition for incapacity and retain the ETG. Unfortunately, that is what occurred in these proceedings.
The guardianship law in Florida is now tangled, but one point is obvious: do not file a Petition for Incapacity unless (a) the alleged incapacitated person is truly incapacitated, and (b) you understand that you may not be able to withdraw the petition. Using a Petition for Incapacity as a tool to coerce settlement or some other behavior is therefore not acceptable (not that it ever was).