We help families and individuals petition the court to serve as a guardian of persons without capacity, to manage the affairs of individuals without capacity, and to fight the determination of incapacity when necessary and appropriate. We have intimate knowledge of this procedure and sympathize with clients as this is sometimes an emotionally taxing situation.
How is a Person Determined to be without Capacity?
Any adult may file a Petition to Determine Another Person's Incapacity with the court setting forth the factual information upon which they base their belief that the person is incapacitated. Assuming the person whom incapacity is alleged is an adult, the court then appoints a committee of three members, usually two physicians, and another person who by knowledge, skill, training or education can form an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition and each member of the committee must submit a report of his/her findings with the court. The examination of the incapacitated person normally includes:
a physical examination
a mental health examination and;
a functional assessment
The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If the majority of the examining committee concludes that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are lesser restrictive alternatives to guardianship which adequately address the person's incapacity.
Who May Serve as Guardian?
Any adult resident, related or unrelated, of FLorida can serve as a guardian. Certain relatives of the ward who do not live in Florida may also serve as guardian. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed (similar to the restrictions of a personal representative). Individuals who are professional or public guardians can also serve as guardian. Additionally, institutions such as a bank trust department or nonprofit corporation can be appointed guardian, but a bank trust department may only act as guardian of the property. The court gives consideration to the wishes expressed by the incapacitated in a written declaration of preneed guardian or at the hearing. The court may not appoint a guardian in some circumstances in which a conflict of interest may occur.