Determination Of Incapacity

In Florida, one of the first steps toward establishing guardianship of an adult who is unable to provide for his or her own health and financial needs is to obtain a “determination of incapacity.” This is done by filing a Petition to Determine Incapacity, a process for which Florida law requires representation by an attorney.

Setting aside legal requirements, seeking guardianship of an adult with incapacities is a challenging process with strict rules that need to be followed. In order to establish incapacity, the petitioner (e.g., the proposed guardian) must present satisfactory evidence to a committee of experts appointed by the court. Because this is a complicated process, anyone seeking to establish (or disprove) a proposed ward’s incapacity in South Florida would be well-served to seek counsel from an experienced local guardianship attorney.

South Florida Guardianship Lawyer

With offices in Miami, the guardianship lawyer at Miguelez Law represents all interested parties in determination of incapacity proceedings throughout South Florida. We have experience representing proposed guardians, “alleged incapacitated persons” (potential wards) and family members in determination of incapacity proceedings. Appointing a guardian for an incapacitated adult is a serious matter that results in the ward losing many of his or her legal rights. To make sure you handle the process appropriately, schedule an initial consultation at our Miami law offices today.

Determination Of Incapacity Examining Committee Hearings

Under Florida Statute 744.331, once a person files a Petition to Determine Incapacity, the court must appoint a three-member committee consisting of: (i) at least one psychiatrist or other physician and (ii) a psychologist, gerontologist, registered nurse, nurse practitioner, licensed social worker and/or another qualified expert approved by the court. This committee will examine the proposed ward and consider evidence from each party involved in the proceedings to determine whether the proposed ward should be deemed legally incapacitated. At the conclusion of the proceedings, each member of the committee must prepare a report that includes:

  • A diagnosis, prognosis and recommended course of treatment
  • An evaluation of the alleged incapacitated person’s ability to retain his or her rights
  • The results of an examination of the alleged incapacitated person
  • The names of all persons present during the examination and their answers to any questions
  • The factual basis for any determination that the proposed ward is incapacitated in any respect

If the majority of the committee members determine that the proposed ward is incapacitated, then the court can issue an order of incapacity, taking into consideration the ward’s “unique needs and abilities.” The court’s order should “only remove those rights that the court finds the [ward] does not have the capacity to exercise.”

In many respects, obtaining a determination of incapacity is just the start of the guardianship process. Guardians must strictly adhere to their fiduciary duties, and disagreements over guardians’ and wards’ rights and responsibilities will often lead to guardianship litigation. If you are preparing to go through the process, our attorneys can guide you every step of the way.

To get started, contact us for a free consultation.

Contact The Guardianship Attorney At Miguelez Law

If you would like to speak with an attorney about filing a Petition to Determine Incapacity, or if you need help fighting an incapacity determination, contact the Miami law office of Miguelez Law. For a free consultation with one of our experienced attorneys, call 305-967-7412 or submit our contact form today.