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Who is incapacitated for guardianship purposes and how is that determined by the Court?

by | Nov 20, 2012 | Announcements, General, Law Articles, Local News |

The Florida Bar states:

“An incapacitated person is an adult who has been judicially determined to lack the capacity to manage at least some of his or her property or to

meet at least some of the essential health and safety requirements of the person.



Any adult may file a petition to determine another person’s incapacity with the court setting forth the factual information upon which they base

their belief that the person is incapacitated. The court then appoints a committee of three members, usually two physicians, and another person

who by knowledge, skill, training or education can form an expert opinion. One of the three members of the committee must have knowledge of

the type of incapacity alleged in the petition and each member of the committee must submit a report of his/her findings to the court. The

examination of the incapacitated personnormally includes 1) a physical examination, 2) a mental health examination and 3) a functional

assessment. The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person

may substitute his or her own attorney for the attorney appointed by the court. If the majority of the examining committee concludes that the

alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially

incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are

lesser restrictive alternatives to guardianship which adequately address the person’s incapacity.