Sarfaty v. in Re: M.S., 16-1419

Background

Petitioner Gilberto Sarfaty filed a verified petition (Dec. 3, 2015) seeking a plenary guardianship for his 46-year-old brother M.S., attaching a psychological assessment alleging lifelong intellectual/cognitive deficits and risk of undue influence and financial exploitation.
The probate court’s standard order (served Dec. 11, 2015) appointed an independent three‑member examining committee and court‑appointed counsel (Irama Valdes), who was also designated the elisor responsible for personally serving and reading the notice to M.S.
M.S. immediately retained private counsel and, signed by M.S., a motion to substitute private counsel was filed Dec. 18, 2015; the court granted substitution on Jan. 7, 2016. Private counsel attended the examining committee interviews with M.S.
Examining committee members completed reports recommending limited guardianship, but the reports were filed after the 15‑day filing window set by section 744.331(3)(e) and the court’s notice (some filed Dec. 29, Jan. 5, and Jan. 8). The parties stipulated to continue the Jan. 13 adjudicatory hearing.
M.S. (joined by mother and sisters) moved to dismiss, arguing lack of required notice by the elisor, untimely examining committee reports, and prejudice from court‑appointed counsel’s pre‑substitution conduct; the trial court dismissed without leave to amend. The Third District reversed, remanding and allowing amendment; one judge dissented, urging affirmance.

Issues

Issue	Plaintiff's Argument (Gilberto)	Defendant's Argument (M.S.)	Held
Facial sufficiency of the petition	Petition and attached psych report adequately allege incapacity and comply with §744.3201	Petition is procedurally defective and prejudicial; due process violated	Court: Petition is facially sufficient; dismissal without leave to amend reversed and remanded to allow amendment and further proceedings
Timeliness of examining committee reports (§744.331(3)(e))	Short delay during holidays and change of counsel does not render petition legally insufficient; timing can be waived/forgiven given circumstances	Reports were filed beyond the statutory 15‑day deadline; noncompliance is mandatory and fundamental	Court: Late filings did not mandate dismissal without leave to amend under these facts; substantial compliance argument accepted
Failure of elisor (court‑appointed counsel) to personally serve/read notice	Petitioner timely served petition materials to family; substitution and actions of private counsel mitigated any alleged elisor lapse	Elisor failed to perform mandatory duty to serve/read notice and file return within 15 days, causing due process prejudice	Dissent: this failure was fundamental and warranted dismissal; majority: record shows invited error and conduct by M.S./private counsel undermines claim of lack of notice
Prejudice from court‑appointed counsel’s pre‑substitution filings and substitution of counsel	Petitioner contends procedures were followed and parties had opportunity to litigate; requested independent professional guardian	M.S. asserts court‑appointed counsel filed adverse objections before meeting M.S., creating prejudice and conflict	Court: While problems existed, they were not fatal to the petition’s sufficiency; merits and prejudice defenses may be raised on remand

Key Cases Cited

In re Fey, 624 So.2d 770 (Fla. 4th DCA 1993) (statutory notice and procedural requirements in incapacity proceedings are mandatory)
Borden v. Guardianship of Borden-Moore, 818 So.2d 604 (Fla. 5th DCA 2002) (noncompliance with §744.331 may constitute reversible error when departures are flagrantly prejudicial)
Adelman v. Elfenbein, 174 So.3d 516 (Fla. 4th DCA 2012) (guardianship statutes must be strictly construed; failure to adhere may be fundamental error)
Rothman v. Rothman, 93 So.3d 1052 (Fla. 4th DCA 2012) (statutory procedures controlling capacity adjudications must be strictly followed)
In re Keene, 343 So.2d 916 (Fla. 4th DCA 1977) (proceedings to determine competency controlled by statute and method prescribed must be followed)