How Does the Court Determine Incapacity Prior to being Appointed a Guardian?

Meeting in a conference room

There are certain instances when the court will need to appoint a guardian for a minor child or for an adult who has become incapacitated. Ultimately, a guardian becomes a surrogate decision maker for the child or incapacitated individual. With such serious responsibility, the court maintains certain requirements for the determination of incapacity. Therefore, it is important to employ the assistance of an experienced Florida Guardianship Attorney.

First, the court must determine incapacity. If you are wishing to be appointed as guardian for a family member, you will need to petition the court to determine incapacity. This petition will contain your name, and relationship to the incapacitated individual; the name and age of the incapacitated person; list the specific factual allegations for the individual’s alleged incapacity, as well as listing any witnesses that would support the claim of incapacitation; the physician of the incapacitated person; and the next of kin of the individual. 744.3201 The petition to determine incapacity as well as the petition for appointment of a guardian will be served on the incapacitated person as well as their next of kin.

Within 5 days of filing, the court will appoint a 3-member committee to investigate the incapacitation claims. One of the three members will be a psychiatrist or other medical physical. While the two remaining members can be “either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology…, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion.” 744.331 Each member will perform their own examination of the alleged incapacitated individual. This will include a physical exam, mental health exam and a functional assessment. Further, the exam may also include consultation with the family physician, and examination of previous examinations done by other medical professionals, school records, or psychological reports. Overall, the committee is seeking to determine if the alleged incapacitated person is able to exercise his or her own rights. A detailed report will be required of each committee member within 15 days and will be served on the petitioner, and the attorney for the alleged incapacitated individual.

The report of each member must contain four main items:

  1. A diagnosis, prognosis, and recommended course of treatment;
  2. An evaluation of the alleged incapacitated person’s ability to retain her or his rights, including, without limitation, the rights to marry; vote; contract; manage or dispose of property; have a driver license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment;
  3. The results of the comprehensive examination and the committee member’s assessment of information provided by the attending or family physician, if any;
  4. A description of any matters with respect to which the person lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the determination that the person lacks that capacity.

If at least 2 of the 3 members conclude in their report that the individual is not incapacitated in any respect, the court will dismiss the petition with no further action necessary.

However, if some incapacity was noted, the court will proceed with an adjudicatory hearing set no more than 14 days after the reports of the committee have been completed and filed. At this hearing, the court must find by clear and convincing evidence that there exists partial or total incapacity. The court may find that the individual is incapacitated with respect to certain rights or all rights, and in doing so will consider the abilities of the party and only remove the rights they are unable to properly exercise. If incapacitation is found, the court must document their specific findings including: “The exact nature and scope of the person’s incapacities; the exact areas in which the person lacks capacity to make informed decisions about care and treatment services or to meet the essential requirements for her or his physical or mental health or safety; the specific legal disabilities to which the person is subject; and the specific rights that the person is incapable of exercising.” 744.331 After determination of incapacitation, you may then proceed with appointment of a guardian.

This is a detailed process, that seeks to protect the rights of the alleged incapacitated individual. Therefore, it is important to know the law and have an experienced attorney assist you in this matter. Contact a Florida Guardianship Attorney today to discuss in more detail your petition for incapacitation and possible guardianship.

Speaking to an attorney at our Florida office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 850-307-5211 or complete an online contact form to get in touch with a member of our team today.

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