In short: In Sarfaty v. In re M.S., a brother petitioned to have his 46-year-old brother declared incapacitated, and the trial court dismissed the petition without leave to amend because of problems with service and late examining committee reports. On November 1, 2017, a divided Third District reversed in a written opinion, holding the petition was facially sufficient and those defects did not justify dismissal. The chief judge dissented, finding the statute’s requirements mandatory.
The Facts
On December 3, 2015, Gilberto Sarfaty petitioned the Miami-Dade circuit court to declare his 46-year-old brother, identified in the opinion as M.S., incapacitated and to appoint a professional guardian. The petition attached a psychological assessment and alleged that relatives had used powers of attorney to move M.S.’s shares in a family business from voting to non-voting status.
The court appointed an examining committee and appointed a lawyer to represent M.S. and to act as elisor, the person responsible for serving him with the notice and petition. Before that lawyer served him, M.S. signed a motion to substitute private counsel, which the court granted in January 2016. Private counsel attended the committee examinations. After the January hearing was continued by agreement, private counsel moved to dismiss, pointing to the lack of service, examining committee reports filed after the statutory deadline, and statements by the first lawyer that he said hurt his client.
After a hearing with no evidence taken, the trial court dismissed the petition without leave to amend on May 6, 2016, and said the proceedings would have to start over. The brother appealed.
At oral argument, the points below are what the lawyers argued, not findings by the court.
- The brother argued the guardianship statute allows dismissal before adjudication on only one ground, and that a service problem called for a new elisor, not dismissal. He argued M.S. waived service by appearing through private counsel and filing motions.
- M.S.’s counsel argued that strict compliance with section 744.331 and Probate Rule 5.550 is mandatory, that service was never perfected, and that knowledge of the case is not a substitute for service.
- The panel asked whether these requirements were jurisdictional or merely mandatory, since a mandatory requirement can be waived.
The Decision
The Third District reversed on November 1, 2017, in a substituted opinion on rehearing that replaced its May 10, 2017 opinion. The majority held that the petition and its attachments were facially sufficient to allege that M.S. was incapacitated, so dismissal without leave to amend was error.
Reviewing only the four corners of the petition, the majority treated the trial court’s reasons as defenses, not pleading defects. M.S. had asked for substitute counsel, and that counsel attended the examinations, so the elisor’s failure to serve was not fundamental error. The majority said no case had held that missing the 15-day deadline for committee reports by a few days requires dismissal. Disputes about service could be resolved at an evidentiary hearing.
The chief judge dissented. In her view, section 744.331 and Rule 5.550 use mandatory language, the elisor never served or read the petition to M.S., the reports were late, and actual knowledge of the case does not cure defective service. She would have affirmed and left the brother free to refile. The case was remanded with the brother allowed to amend and M.S. free to raise his defenses.
The Law
Section 744.331 sets the procedure to determine incapacity: notice and service of the petition on the alleged incapacitated person, appointment of counsel, a three-member examining committee, deadlines for the committee reports, and the adjudicatory hearing. It directs the court to dismiss the petition if a majority of the committee concludes the person is not incapacitated in any respect.
Florida Probate Rule 5.550, on floridarules.net, governs the petition to determine incapacity and its service. The majority noted that under the rule the alleged incapacitated person is deemed to have denied the petition’s allegations.
Section 744.1012 states the Legislature’s intent for the guardianship law, including protecting people who need help while preserving as much of their autonomy as possible. The majority cited it for liberal construction of the chapter.
Current law (2026): Section 744.331 has been amended several times since this 2016 case, most recently in 2026. The current version requires each examining committee member to file a report within 15 days after appointment and requires all reports to be served on the petitioner and the person’s attorney at least 10 days before the hearing. Check the current text for every deadline.
Lessons
- A guardianship petition that alleges facts showing incapacity should not be dismissed at the pleading stage because the process around it went wrong. The remedy is usually to fix the process.
- Service on the alleged incapacitated person still matters. The dissent shows how seriously some judges take the statute’s mandatory language.
- Appearing through counsel and taking part in the examinations can undercut a later claim of defective service.
- Deadlines for examining committee reports are real, but in this case a few days’ delay was not fatal.
Source: Sarfaty v. In re M.S., No. 3D16-1419 (Fla. 3d DCA Nov. 1, 2017) (substituted opinion on rehearing).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Can a Petition to Determine Incapacity Be Dismissed for Defects in Service and Report Deadlines?
Go Deeper
- How to Avoid Guardianship in Florida: The Power of Attorney Is the Least Restrictive Alternative
- Testamentary Capacity in Florida: When Dementia Makes a Will, Deed, or POA Invalid
- A Guardian Created a Trust, Then Dad Died: Can a Successor Judge Hear the Challenge? (Mack v. Polsby)
Frequently Asked Questions
How is a petition to determine incapacity served in Florida?
Section 744.331 requires notice and copies of the petition to be served on and read to the alleged incapacitated person, with notice to that person’s attorney and next of kin. In Sarfaty, the court-appointed elisor never served the person, but he had hired private counsel who took part in the case.
When can a court dismiss a guardianship petition?
The statute directs dismissal if a majority of the examining committee finds the person is not incapacitated in any respect. In Sarfaty, the Third District held that service problems and late reports did not justify dismissing a facially sufficient petition without leave to amend.
What is an examining committee in a Florida guardianship?
It is a three-member panel the court appoints to examine the alleged incapacitated person and report on his or her capacity. The current statute requires each member’s report to be filed within 15 days after appointment.
Can the person who is the subject of a guardianship petition hire his own lawyer?
Yes. The court appoints counsel, but the alleged incapacitated person may substitute private counsel with court approval, as M.S. did in Sarfaty. His counsel’s participation in the case was part of why the majority found no fundamental error in the service problems.
Talk to a Florida probate litigation lawyer
Weidner Law, P.A. handles Florida probate disputes and probate appeals from St. Petersburg. If you need a probate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
