How Is Incapacity Determined in Florida?

Incapacity is determined by a judge in the state of Florida. A relative, an interested person, or a professional guardian may request a court to determine the capacity of an alleged incapacitated person. Upon filing a request to determine capacity, the court appoints an attorney for the alleged incapacitated person and three examining committee members. The three examining committee members are all people with medical backgrounds and training in making medical capacity determinations. These individuals can include psychologists, psychiatrists, social workers, and even primary physicians.

After the petition is filed, the court-appointed attorney will meet with the alleged incapacitated person. The examining committee members will meet and spend time with the incapacitated person as well. The committee members will file reports with the court in reference to their meeting and there will be a court hearing. At the court hearing, which must be recorded, the judge will review the reports of the examining committee members. The judge will hear from the attorney of the person requesting this representation and any other interested party or next of kin. If there is no contrary medical data or evidence provided to the court, then the court will usually lean on the recommendation of the examining committee members.

If two of the three members say that a person has the capacity then the judge will find that the person has capacity. If not, the judge will issue an order determining incapacity, whether it is full incapacity or the incapacity is limited in scope. After a capacity determination is made, the court considers whether there is an alternative to guardianship and may consider a petition for guardianship.

What Is The Difference Between The Guardian Of An Estate And The Guardian Of A Person?

In Florida, the guardianship proceeding can be split between which rights the ward needs to have a guardian for. A guardian is delegated to act on behalf of the ward, who is incapacitated. A guardianship of the property relates to naming a person solely in charge of the property rights of the ward. The property rights would include selling, buying, investing, signing up for public benefits, signing contracts, and anything else related to property ownership. Guardianship of a person relates to everything dealing with the physical person of the ward. That can include medical decisions, social environments, living arrangements, where to live, and so forth. Those responsibilities can be combined in one person in a plenary guardianship or you can have a separate guardianship of the person.

Does The Incapacitated Person Have Any Say In Choosing The Guardian?

The person subject to the incapacity proceeding is the alleged incapacitated person or the ward. He or she has the right to attend any hearings and even give testimony to the judge. One of the factors in the Florida statute states that the court shall consider the wishes expressed by an incapacitated person as to who shall be appointed guardian. However, those wishes may or may not be the final determining factor. Sometimes, the ward may have a mental impairment as to who the right person is to act in their best interest. Sometimes, a guardianship is done because the person that the ward may choose to select is, in fact, the abuser we are seeking to protect the ward from.

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