Navigating the legal process of declaring someone incapacitated is a delicate matter which requires careful consideration and adherence to Florida law. This blog provides a brief overview of the incapacity process and some guidance when dealing with such situations.
Understanding Incapacity
In Florida, incapacity refers to a person’s inability to make informed decisions about their personal and financial affairs due to physical or mental limitations. When someone is deemed incapacitated, it may become necessary for a guardian to be appointed to make decisions on their behalf.
Initiating the Process
- Petition for Determination of Incapacity
- The incapacity proceeding begins when a petition is filed by an interested party, such as a family member, with the Mental Health division in the county where the alleged incapacitated person resides
- The petition must include:
- The name, age and current address of the alleged incapacitated person;
- The name, age, current address and relationship of the petitioner to the alleged incapacitated person;
- Specify the primary language of the alleged incapacitated person;
- Allegations that the petitioner believes the alleged incapacitated person is indeed incapacitated and unable to make decisions over their person and/or property;
- Provide factual information to support the allegations along with names and addresses of other individuals who have knowledge of the stated facts;
- Provide the name, phone number and address of the alleged incapacitated person’s primary care physician;
- List which rights the alleged incapacitated person is unable to exercise (pursuant to Florida Statute 744.3215); and
- Provide the names, relationships and addresses of the alleged incapacitated person’s next of kin.
- Appointment of Examining Committee
- Once the petition has been properly filed with the Court, an examining committee consisting of three members, one must be a psychiatrist or other physician. The remaining members must be either psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or any other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. One of three members of the committee must have knowledge of the type of incapacity alleged in the petition.
- Each of the examining committee members shall examine the person and determine the alleged incapacitated person’s ability to exercise the rights included in Florida Statute 744.3215.
- The examining committee members must file their report with findings and recommendations with the clerk of court within fifteen (15) days of their appointment.
- These reports must include a comprehensive examination, which includes the following:
- A physician examination;
- A mental health examination; and
- A functional assessment.
- Appointment of Attorney for the Alleged Incapacitated Person
- When the court must appoint an attorney for the alleged incapacitated person, the attorney appointed must be from the office of criminal conflict and civil regional counsel or a private attorney.
- The role of the attorney is to investigate the circumstances and allegations presented and advocate for their client’s rights.
- Legal Proceeding
- Upon the appointment of the examining committee, a hearing shall be set to review the evidence and examining committee reports.
- The hearing must be conducted at the time and place specified on the notice of hearing.
- The alleged incapacitated person must be present at the hearing, unless their presence is waived for good cause shown.
- During the hearing, the partial or total incapacity of the person must be established.
- If the court finds that the alleged incapacitated person is indeed incapacitated, a guardian shall be appointed to make decisions on behalf of the person.
- A guardian will be appointed in a separate proceeding called “guardianship”.
Conclusion
Declaring someone incapacitated is complex that requires careful and sensitive consideration of the alleged incapacitated person’s rights and interests. If you are considering initiating the process of declaring someone incapacitated, call our experienced attorneys who are willing and able to assist you through the process and ensure you are complying with all the necessary laws and procedures.