If you’re not familiar with Florida Statute 744.331, there’s been some historical controversy about the role of the ‘examining committee’ established under the statute.  For our purposes, in short, after a petition to determine incapacity is filed, an examining committee of three people is formed to make a determination of whether the alleged incapacitated person is actually incapacitated. 

A trial court in Florida recently found the statute to be unconstitutional.  Let’s see why.

It has been argued that this delegation of authority to the examining committee is unconstitutional because it results in the abdication of judicial authority to the committee and removes the right of the court to make appropriate decisions for the benefit of an alleged incapacitated person.  On these grounds the Circuit Court for the Seventeenth Judicial Circuit, Broward County, ruled the statute to be unconstitutional.  The court decided that the statute impermissibly delegated the court’s authority to a non-judicial entity.

The key to the finding of unconstitutionality was that, if a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated, the court shall dismiss the petition to determine capacity.  This supposedly puts a judicial power (dismissal of a petition) into the hands of two non-judicial people.

In Rothman v. Rothman, a Florida appellate court again rejected this argument that the statute is unconstitutional.  The statute is to be narrowly construed and it is clear on its face – if the majority of the examining committee determines that the person is not incapacitated, then the trial court shall dismiss the petition.  That’s a ministerial act, and, therefore, the statute is not unconstitutional.