Before a court can impose an involuntary adult guardianship based upon incapacity, Florida law requires a structured judicial process.
That process is designed to answer a significant question:
Which rights, if any, is this individual legally incapable of exercising?
Petition to Determine Incapacity
The proceeding generally begins with a verified Petition to Determine Incapacity.
The petition identifies the factual basis for the allegations and the rights believed to be affected.
Court-Appointed Attorney
Florida law requires an attorney to be appointed to represent each person alleged to be incapacitated. The person may substitute his or her own attorney.
Three-Member Examining Committee
Within five days after the incapacity petition is filed, the court appoints a three-member examining committee.
One member must be a psychiatrist or other physician. The other members come from statutorily authorized professional backgrounds or must otherwise be qualified to provide an expert opinion.
Each member examines the alleged incapacitated person and generally files a report within 15 days after appointment.
What Does the Committee Evaluate?
The committee evaluates the person’s ability to exercise identified legal rights and performs a comprehensive examination addressing appropriate physical, mental-health, and functional considerations.
The goal is not merely to identify a diagnosis.
The question is what the person can actually understand and do.
What Happens if the Committee Finds No Incapacity?
If a majority of the examining committee determines that the individual is not incapacitated in any respect, Florida law requires dismissal of the petition.
The Incapacity Hearing
At the adjudicatory hearing, partial or total incapacity must be proved by clear and convincing evidence.
The court can remove only the rights the evidence shows the person lacks capacity to exercise.
Alternatives to Guardianship
Even after incapacity is established regarding a delegable right, guardianship does not automatically follow.
The court must determine whether an alternative to guardianship sufficiently addresses the problem. If it does, the statute prohibits appointing a guardian for that right.
Potential alternatives can include powers of attorney, trusts, healthcare directives, supported decision-making, and other arrangements depending upon the facts.
Contested Incapacity Proceedings
Incapacity can be litigated.
Disputes may concern:
- examining committee conclusions;
- medical records;
- functional abilities;
- credibility of witnesses;
- allegedly improper financial decisions;
- sufficiency of alternatives; or
- the rights proposed for removal.
Read more about [Contested Guardianship in Florida].
Speak With Florida Guardianship Attorneys
Whether you are seeking protection for a loved one or opposing an unnecessary guardianship, incapacity proceedings can have profound consequences.
Contact The Gigele Law Firm at (772) 222-6548.