## Facts

- Frances Losh was in her early 90s and lived at home, generally handling her own affairs.
- Because her handwriting had become shaky, Losh sometimes asked others to write checks for her, but she otherwise managed her finances and kept a ledger of financial activity.
- Losh kept most of her cash in low-return money-market accounts.
- Losh owned several pieces of real estate and did not insure some of the property because she believed her liquid assets were sufficient to cover potential damage.
- Losh fell and broke her tailbone; she did not immediately seek medical treatment because she initially believed the injury was only a bruise.
- After hospitalization, Losh returned home and hired 24-hour nursing help while she recovered.
- Losh paid her daughter, Carlin McKinley, to fly to Florida to help her; McKinley refused to stay in Losh’s home and filed a petition asking the court to (1) declare Losh incapacitated and (2) appoint a guardian to manage Losh’s medical and financial matters.
- The trial court ordered medical evaluations by three physicians:
  - One physician found Losh mentally healthy.
  - A second physician noted mild cognitive issues (including difficulty recalling information about medications).
  - A third physician found Losh cognitively alert with excellent memory.
- Recommendations differed: one physician recommended no guardianship, while the others recommended, at most, a limited guardianship focused on certain financial matters.
- The trial court focused on concerns that Losh needed help writing checks, might be susceptible to undue influence by caregivers, and might be making questionable financial choices (keeping funds in low-return accounts and not insuring some real estate).
- Despite finding only “limited incapacity,” the trial court appointed a guardian to handle nearly all medical and financial matters and removed most of Losh’s rights.
- Losh appealed the incapacity determination and the breadth of rights removed.

## Issues

1. Whether the evidence was clear and convincing that Losh presently lacked capacity to exercise the rights the trial court removed, justifying appointment of a guardian over virtually all medical and financial matters.

## Decision

- The Third District Court of Appeal reversed the order determining limited incapacity and imposing the broad guardianship.
- The court held the record did not meet the clear and convincing evidence standard required to remove Losh’s rights.
- The case was remanded with directions to restore Losh to full capacity and reinstate her rights.

## Legal Principles

- A Florida court may remove an adult’s rights and impose guardianship only upon clear and convincing evidence of present incapacity.
- Any rights removed must be limited to those the person is shown to be unable to exercise; the court must use the least restrictive alternative consistent with the evidence.
- An elderly person’s conservative or unconventional financial choices (e.g., preferring liquidity or choosing not to insure property based on available cash reserves) do not, standing alone, prove legal incapacity.
- Concern about possible future undue influence, without proof of current decisional impairment tied to specific rights, is insufficient to justify stripping legal rights.
- When the alleged incapacitated person can explain her assets, accounts, property, and reasoning in a coherent and detailed way, that testimony may weigh strongly against a finding that broad rights removal is warranted.

## Conclusion

Because the evidence showed that Losh largely managed her own affairs and could explain her finances and choices, and because the trial court’s decision rested mainly on speculative risks and disagreement with her financial preferences rather than clear and convincing proof of present incapacity as to the removed rights, the appellate court reversed and directed that Losh’s full capacity and rights be restored.


Losh v. McKinley, 86 So. 3d 1150 (2012)