Florida Determination of Incapacity Explained

In the State of Florida, there are strict requirements governing a person’s ability to be granted guardianship over another. There are several situations where a guardianship would be needed, most commonly when a loved one is incapacitated in some way and unable to manage his or her own affairs.

A guardianship is a legal status granted to a person who will then be required to care for the best interests of a ward with regard to finances, property, and health care in situations where the ward is unable to make those decisions. The incapacitation could be due to an accident or even a mental illness that would cause the ward to be incapable of making reasonable decisions for themselves.

In order to be granted a guardianship, Florida law stipulates that there be a “Determination of Incapacity” made with respect to the “Alleged Incapacitated Person (AIP).” This determination is the first step in the guardianship process and it allows the court to decide whether or not a guardianship is necessary.

First, a potential guardian must petition the court to make a determination of incapacity about the person for which they want to act as guardian, as well as a petition to serve as legal guardian should the AIP be deemed as incapacitated. A notice that these two petitions have been filed must be delivered and read to the AIP, his or her lawyer, as well as any known next-of-kin.

The court will appoint a lawyer to the AIP if he or she does not already have a lawyer, and the appointed lawyer must be pre-approved to serve in such cases.

The court will then appoint an examining committee comprised of three individuals to conduct examinations and give their opinion on the alleged incapacitation. One of those three must be a psychologist or physician, and the other two must serve in a job for which their training and experience gives them knowledge to make a determination about another person’s ability to make decisions for themselves. This could be other physicians, nurses, social workers, etc, and generally none of the three members of the committee can be the AIP’s current physician or someone with a conflict of interest like a relative.

Each member of the committee will independently evaluate the AIP and determine if any rights, such as the ability to make one’s own financial or health care decisions, should be taken from the individual, and they must submit a report to the courts within 15 days of their appointment. Their examinations will include physical, mental, and functional assessments.

If a majority of the committee comes to the conclusion that the AIP lacks capacity, then the court will probably enter a determination of incapacity and the potential guardian may be granted guardianship if it is needed and there are no alternatives like someone with a Power of Attorney.

If you are interested in being granted guardianship over a loved one, please contact the Vazquez de Lara Law Group and let us work to achieve a determination of incapacity so that you can fairly and effectively manage your loved one’s affairs.

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