Service on Incompetent

by: Johnelle Rodriguez

What comes to mind when you think of the word “incompetent?”

According to dictionary.com, “incompetent” has some of the following definitions:
– Lacking qualification or ability
– Incapable
– Being unable or legally unqualified to perform specified acts
or to be held legally responsible for such acts (law)
– A person lacking power to act with legal effectiveness (law)
– A mentally deficient person

May is Mental Health Awareness Month.

Although service of process and investigations deal with legalities, mental health does play a role in executing these services. To be more specific, if someone is declared “incompetent,” special measures must be taken when serving documents on the individual.

But let’s back up a little.

First off, the court is the only entity that can declare an individual incompetent. This declaration is a medical opinion based on someone’s medical history, mental health issues, or physical health issues. And this is usually determined by a doctor.

“Your husband, your wife, your sister, your brother, your aunt, or your uncle can’t declare you an incompetent without a legal proceeding,” Bob Fischer, president of Professional Process Servers & Investigations, Inc., explains.

When it comes to court cases, anyone has the potential to be involved in one. We have served people who have been deemed incompetent, and they’re usually the defendants in a case. Sometimes, the attorneys for the plaintiff don’t know of the person’s condition until the process server actually goes out and tries to serve him or her. All this being said, there are specific ways to handle these services.

Guardians ad litem are those who sort of act as a voice for the incompetent, in general terms.

“The guardian ad litem is like a power of attorney, in a really broad sense,” Bob says.

They are usually appointed by the court for someone who is declared incompetent and has to be involved in a court proceeding. They usually have the best interest of those they are representing at heart. In order to become a guardian ad litem, you must be appointed by the court by going through a special procedure, proving you can handle the different legal practices for an incompetent person.

Florida Statute 48.042 outlines how these types of services should be handled. As a process server, when you know the individual is incompetent, you must serve under this statute. Two copies of the documents must be served on the person who has control over the incompetent, whether it’s a family member, a hospital administrator, a mental health hospital administrator, or a guardian ad litem. However, a process server who attempts to serve an individual may not have any idea that the person is incompetent. The address the server attempts could be a facility where the person is being kept or a residence, where the person lives. When the server is advised of the person’s condition, this must be verified by documentation provided by the court.

As in any situation, the server must use his or her discretion when seeking to obtain service in a hospital or a mental facility. A process server should know not to just go in and try to find the person and serve the documents at his or her bedside.

Bob says that when he goes to the facility, he makes contact with one of the directors, whether it’s the director of nursing or someone in the facility who has control. He explains why he’s there and the documents he has. Usually, the administrator can be served. Bob typically tries to determine the person’s condition and reason for being at the facility before he tries to serve the documents.

Sometimes, people will be in the hospital to try and avoid service, which has happened to Bob several times. One time, a person faked a heart attack and had the ambulance come and take him to the hospital. Luckily, a neighbor knew what hospital he was in. So Bob found this out, took matters into his own hands and went to the hospital and contacted the local security official. He explained what was going on, and the security laughed a little and said the guy he was looking for did not have a heart attack. He told Bob what bed he was in and where he was located in the hospital. As soon as Bob served him, he got up out the bed and walked out of the hospital, cursing and screaming and hollering at Bob.

“Be very careful,” Bob advises. “Tread very carefully. It’s a very thin line.”

If someone has a real problem, you don’t want to just walk into the hospital and try to serve him or her; the service can potentially put the individual over the edge. But if he or she has not been declared incompetent and is in a hospital, the server can go up to the individual’s hospital room and try to serve the documents.

Say the servee has a heart condition, for instance. Bob would contact the head nurse at the station and make a determination of the severity of the person’s condition, such as if something like serving process could trigger an episode. Therefore, being careful is key. Once he discovers this information, he usually goes back to the client to confirm what should be done next.

For additional information on serving documents in hospitals, check out the following link: How to Serve Papers in a Hospital.

Some mental health facilities will not grant servers access. Some rehabilitation facilities, such as drug rehab and substance abuse rehab centers will not let servers in, either. At times, they won’t even confirm or deny if the person being sought is there. And this is legal, especially if it’s a Federal Class A facility.

“You’re not gonna get anywhere near that individual,” Bob warns.

With halfway houses and some of these facilities, it’s up to the process server to use some ingenuity to get people served. For instance, if it’s an outdoor facility with people hanging out on the street corner or out in front of their apartments, it would be smart for the server to go up and ask for the person.

Grow a heart.

That’s the advice Bob has for some attorneys who just don’t care. Some want the server to go in and deliver documents, regardless of the servee’s medical condition or reason for being in the hospital, when there are other ways to handle the matter. ♦

Are your medical records safe?

by: Johnelle Rodriguez

Our medical records are confidential pieces of information that we do not disseminate for everyone to examine and gaze upon. These files are for our personal knowledge and use and for our doctors and specialists to look over in order to diagnose and treat us. Sometimes, these records are requested in the courtroom to serve as evidence when presenting a case.

Along with these records, our social security numbers and dates of birth are access keys to everything, from medical records to bank accounts, and they are holy grails for those on the road to performing identity theft. If we do not keep these bits of information under wraps, all hell can break loose.

This being said, how do we know whether doctors and hospitals are keeping our records safe from unauthorized parties? Is it possible for others besides ourselves and those we authorize to obtain our personal information? Is it possible that our dates of birth and social security numbers may be passed along to just anyone?

The Florida Bar passed rules of civil procedure for service of process that allow law firms to mail their subpoenas for production of non-parties (i.e., medical records subpoenas). These subpoenas request information from a patient’s records and provide the patient’s date of birth and/or social security number. These documents are sent to mailrooms at hospitals and/or doctor’s offices. However, there is no guarantee that this is done in a legit fashion.

Being part of a service of process company, we do not understand how this is lawful. For starters, this is not done according to the Florida Statutes, nor has it been passed into law through Congress.

On a daily basis, we process tons of subpoenas for medical records, easily a couple hundred of these papers every week, as they are always being requested by our clients. So this is a basic gauge as to how much patient information is floating around our office, which, at least, is better than floating around in mailing envelopes all over town. In an effort to maintain patient privacy, we sift through each of these subpoenas and redact every single social security number and date of birth present before scanning them into our internal system.

Certified Civil Process Server Program – Informational Manual by Walter D. Cordle, Jr., Process Server Program Coordinator, is a booklet given to process servers for Miami-Dade County. In it, it states, “Process must be correctly ‘served’ – delivered to the person named in process – in order for the court to acquire jurisdiction, or power, over that person or property. If process is not served correctly, the court may not legally consider the matter and any decision rendered by that court is subject to being voided.” (p. 1)

When the federal HIPAA law was originally written, it was done so with the intention that all subpoenas would be served according to federal and state laws, meaning they would be personally served to doctor’s offices and hospitals. The idea of these documents being mailed to these medical offices was out of the question.

This monster of an issue was created by attorneys of the Florida Bar in an effort to possibly cut costs in their cases, but by taking this route, they are placing individuals’ information in jeopardy. If something were to happen as a result of these subpoenas being mailed, the attorneys and law firms would not be the ones in boiling water – the hospitals and doctor’s offices would be the ones subject to heavy fines imposed by Health and Human Services in Washington, D.C. These fines can range from $10,000 to millions of dollars.

So next time you’re at the doctor’s office or in the hospital, be sure to mention you are not willing to have your information released unless it is served by means of a proper subpoena that is served by a process server. You’ll probably surprise the medical staff with this request, but this can save you loads of heartache and headache. ♦