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In Florida, legal incapacity of an adult is determined by a judge. Relatives, professional guardians or any other interested person can request a court to determine whether or not an individual should be legally considered incapacitated . Once a request has been filed to determine incapacity, the alleged incapacitated individual will be provided with a court appointed attorney, and have three examining committee members assigned for their evaluation. These committee members come from various medical backgrounds, with most holding professional positions as psychologists, psychiatrists, social workers and even physicians.

After the filing of the petition, both the court-appointed attorney and committee members will meet with the alleged incapacitated individual. Committee members then file reports with the court detailing their meeting, filed by a formal court heating. During the hearing, the judge will review the committee member reports as well as hear from the attorney handling the individual’s case and any other interested parties or next of kin. If no contrary evidence or data can be provided to the court, then the judge will typically lean on the recommendation of the committee members.

If the majority of the committee members state that the individual has capacity to manage themselves and their affairs then the judge will declare that individual to have capacity. However, if this is not the case then the judge can issue an order determining incapacity, whether it is full or limited in its scope. Once this has been determined the court will decide whether any alternatives to guardianship are possible and may even consider a petition for guardianship.

Differences Between Guardian of Person and Guardian of Estate

In Florida, guardianship can be combined together or split into two different types depending on the needs of the ward. Guardians are individuals who have been delegated to act on behalf of the incapacitated ward. Guardianship of property is specifically related to the management and protection of the property rights of the individual. This can include things such as the buying or selling of property on behalf of the ward, as well as other things such as investing or signing up for public benefits, signing contracts or anything otherwise related to that individual’s property ownership.

Guardianship of a person on the other hand specifically deals with any decisions relating to the physical person of the individual. This typically includes things such as medical decisions on behalf of the ward, living arrangements, social environments they are party to, etc. The option exists for a plenary guardianship of the ward which combines guardianship of a person and guardianship of property under one.

Do incapacitated Persons Have Say in Choosing a Guardian?

Alleged incapacitated individuals have certain rights during the legal process of determining incapacitation. This includes the right to attend any hearings during the case and even give testimony to the judge on their behalf. Per Florida law, courts are required to consider the wishes expressed by an incapacitated individual as to who should be appointed as their guardian. However, while these wishes are reviewed and considered by the courts, they may not be a final determining factor in the decision.

There are times when the alleged incapacitated individual may have a mental impairment that does not allow for proper reasoning as to the right person to act on their behalf as a guardian. Additionally, in this same scenario the guardianship is often pushed for by family members in order to protect the ward from the very individual they may otherwise choose, such as in a situation involving abuse. For additional information regarding determining incapacity in Florida, it is strongly recommended to consult with an attorney specializing in probate and elder law in order to have the best possible legal outcome.

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