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Joyce A. Julian P.A. Attorney at law Fort Lauderdale Divorce Attorney
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Florida Guardianship: Determining Incapacitation

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Florida law provides for the appointment of a guardian for an adult in circumstances where the adult’s ability to make decisions is impaired. Once a guardian has been appointed, they will be making decisions on behalf of the individual deemed impaired (the ward). Generally, a guardian’s duty in Florida is to act on behalf of a ward’s person, property, or both. Nevertheless, it is crucial to note that, in Florida, a guardian is only allowed to exercise those rights that have been removed from the ward and delegated to them. According to Florida Statute 744.3215(3), rights that may be delegated to the guardian include the right to:

  • Sue and defend lawsuits.
  • Contract
  • Determine his or her residence
  • Apply for governmental benefits
  • Consent to mental health and medical treatment
  • Make any disposition or gift of property or to manage property
  • Make decisions about social aspects of his or her life

So, how is incapacity determined in a Florida guardianship case? Read on to find out.

Definition of Incapacity

According to Florida Statute 744.102(12), when an individual is “incapacitated”, it means they’ve been judicially determined to lack the capacity to manage at least some of their property or meet at least some of their essential health and safety requirements.

How Is Incapacity Determined in Florida?

In Florida, the first step towards determining whether a person is determined is filing a petition to determine incapacity. According to Florida Statute 744.3201(1), any adult person can file a petition to determine incapacity in Florida. Among other things, a petition to determine incapacity must specify why the petitioner believes an individual is incapacitated.

After a petition has been filed, the Court appoints a committee of three members, one of whom must know about the alleged incapacity. Usually, the committee consists of two physicians and an expert witness.

Next, each member of the committee examines the alleged incapacitated person. After a thorough examination, each committee member submits a report of findings to the Court. Usually, the Court bases its final decisions on the reports submitted by the members of the committee.

Finally, upon receiving the reports, the Court goes through them thoroughly. And, if it is found that the majority of committee members believe an individual is incapacitated, the Court will hold a hearing to determine whether the individual is partially or entirely incapacitated. On the other hand, if the majority of committee members believe that an individual is not incapacitated, the Court is required to dismiss the petition.

So, what happens after the Court determines an individual is incapacitated? If the Court determines that an individual is incapacitated, a guardian will be appointed. However, if less restrictive alternatives to guardianship that can sufficiently address the individual’s incapacity exist, a guardian will not be assigned.

In Florida, courts usually appoint attorneys to represent alleged incapacitated persons. However, an alleged incapacitated individual is allowed to hire their own attorney.

Contact a Fort Lauderdale Guardianship Attorney Today

A Fort Lauderdale family lawyer experienced in guardianship matters can answer any of your guardianship-related questions and help you with your guardianship case. For answers or help with your guardianship case, contact Joyce A. Julian, P.A., today at 954-467-6656. You can also reach us by filling our online contact form.

Resource:

flsenate.gov/Laws/Statutes/2012/744.3201

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