Process of Incapacity Proceedings for Ineligible Guardians
Incapacity Proceedings | Guardian Appointment | Disputes
A Florida guardianship proceedings is a legal process in which an individual files a petition with a Florida Probate Court requesting the authority to exercise the legal rights of an alleged incapacitated Florida resident (the “ward”). The legal proceeding is commenced with the filing of the Petitions for Appointment of Guardian and Determine Incapacity. The Petition for Appointment of Guardian asks the Florida Probate Judge to appoint someone to look out for the welfare of the alleged incapacitated Florida resident. The petition can be filed by a family member, concerned third party, or the Counties Adult Protective Services. The Florida Petition to Determine Incapacity requests the Florida Probate Judge to have the ward examined and a determination made as to his or her competency. The burden rests on the petitioner to prove that the alleged incapacitated Florida resident should be determined to be incapacitated in the court's eyes. Witnesses testimony may be required to prove the alleged incapacity. The Florida guardianship Petitions for Appointment of Guardian and Determine Incapacity are filed with the Florida Probate Court, along with an Application for Appointment as Guardian. The Florida Probate Court will then appoint an attorney to represent the alleged incapacitated Florida resident.
When Is A Guardian Required for an Adult?
It may be necessary to petition a court to appoint a legal guardian for an individual under the following circumstances:
- They lack the physical and/or mental ability to take care of their own basic needs;
- They are in danger or substantial harm; and
- They no individual legally authorized to assume responsibility for them (Power of Attorney or Health Care Surrogate).
How is a Person Determined to be Incapacitated in Florida?
Upon the filing of a Petition to Determine Incapacity, the Florida Probate Court will appoint three individuals to examine the ward (alleged incapacitated person). One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, psychiatrist, or other physician, a registered nurse, nurse practitioner, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or 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 Florida examination committee must have knowledge of the type of incapacity alleged in the petition. The examining committee members each meet independently with the alleged incapacitated person to evaluate his or her abilities and make a written report, which is filed with the Florida Probate Court. If the examining committee concludes that the ward is not incapacitated in any way, the Florida Probate Court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights a hearing will be scheduled to determine whether the person is totally or partially incapacitated.
The Rights of the Alleged Incapacitated Person
The Florida guardianship process commences with the filing of (i) a Petition to Determine Incapacity; and (ii) Petition for Appointment of a Guardian. Once they are filed the court will appoint a three-person examining committee to perform an examination of the alleged incapacitated person. Once all of the examinations are completed, a hearing will be conducted to determine capacity, whether less restrictive alternatives to guardianship are available and whether any of the individual’s legal rights should be removed and appointed to a guardian.
