St. Thomas Law Review
First Page
317
Document Type
Article
Abstract
This article will focus on answering two issues that play an important role in the determination of the need of establishing a guardianship for an AIP. Specifically, (1) whether the requirement that a petition to determine incapacity be dismissed if two examining committee members opine there is no incapacity, in violation of Florida's Evidence Code as well as Chapter 744's requirements; and (2) whether examining committee reports, without testimony, are hearsay under Florida's Evidence Code, section 90.803 of the Florida Statutes, and usurp judicial discretion under section 90.703. Part I will delineate the problem associated with section 744.331(4) of the Florida Statutes and hearsay objections to the examining committee reports. Part II will discuss the conflicting claims that can be raised by the petitioner, the attorney for the AIP, and the Florida Legislature. Part III will detail the past trends and decisions with regard to the requirement that a Petition to Determine Incapacity be dismissed if two examining committee members opine there is no incapacity. Part III will also outline possible violations of Florida's Evidence Code, violations of the requirements of Chapter 744, as well as the conditioning factors behind examining committee reports qualifying as hearsay under Florida's Evidence Code, section 90.803. Part IV will set its sights on projections for future decisions in light of changed and changing conditioning factors. Part V will pose potential recommendations for amending the current statutes in order to solve the guardianship issues addressed in this article.
Recommended Citation
Enrique Zamora & Andres Vasquez,
Examining Committee Reports as a Basis to Dismiss Petitions to Determine Incapacity: A Question of Admissibility and Evidentiary Relevancy,
25
St. Thomas L. Rev.
317
(2013).
Available at:
https://scholarship.stu.edu/stlr/vol25/iss3/4