Determining incapacity in a Florida Guardianship Matter
At some point, a loved one may need to appoint or have appointed a surrogate to make personal, health, and/or financial decisions for them. In cases that an adult has been incapacitated due to mental or physical disability, a determination of incapacity must be made. In determining incapacity, the court shall consider the person’s unique needs and abilities and may only remove those rights that the court finds the person does not have the capacity to exercise. Having an experienced guardianship attorney guiding you through this process is essential to achieving the best outcome for all parties.
Florida law allows both voluntary and involuntary guardianships. A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntarily petitions for the appointment.
Petitions to Determine Incapacity
These petitions are the first step in the process of establishing guardianship. They are filed in conjunction with Petitions for Appointment of Guardian and the petitioner is required by Florida Law to be represented by an attorney.
There are two components to involuntary guardianship:
- A determination of incapacity
- Transfer of rights to another
Florida utilizes an examining committee to review the ability of the alleged incapacitated person (AIP) and report their findings to the court. During the adjudication hearing, the court may hear testimony from anyone regarding the capacity of the person. The attorney for the AIP may present other expert opinions or testimony in support of the AIP’s abilities. No one can lose his or her civil rights unless a judge orders them removed. If the court finds that the person does not lack capacity – in other words, the person is capable of exercising his civil rights – then the guardianship process ends.
Contact An Experienced Treasure Coast Guardianship Lawyer
Determining guardianship is a complex matter and requires an attorney with knowledge and skill. The Attorneys at Neill Griffin Marquis Osking, PLLC have the experience needed for the best outcome possible. Call our Fort Pierce office at 772-464-8200 for a confidential consultation
