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In a Guardianship Proceeding How is a Person Determined to Be Incapacitated?

by | Jan 21, 2013 | Probate |

The Florida Bar states, “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 person normally includes 1) a physical examination, 2) a 4 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”.