Fifth District Court of Appeals Encourages Legislature to Clarify Statute

The decision of whether and when to petition for incapacity of an elderly relative is challenging and can rarely be accomplished without the assistance of an experienced practitioner. However, even with an experienced attorney the frustration level is high for parties involved in the guardianship process, due in part to the lack of clarity and direction contained in the relevant portions of the law.

The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331(4) which explains the process following the petition to determine incapacity:

“Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, 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[.]” (more…)

Third District Upholds Palm Beach Probate Court’s Appointment of Guardian Not Related to the Ward by Blood or Marriage.

The decision of whether and when to have a loved one declared incompetent is a difficult and challenging process, and should involve an attorney who is familiar with the issues and procedures of guardianship law. In Florida, the guardianship statutes provide for certain procedures to protect the rights of the person who is allegedly incompetent.

The process generally involves the filing of a Petition to Determine Incapacity. Fla.Stat. §744.331(1). Thereafter, the Court will appoint an examining committee to assess the mental and physical condition of the person who is allegedly incapacitated. Fla.Stat. §744.331(4). Depending on the report presented to the Court, a hearing will be conducted wherein testimony and other evidence is heard, and the Court decides if the alleged incapacitated person is actually incapacitated and then whether a guardian is necessary. (more…)

Guardianships are an area of my practice that requires a lot of finesse when counseling clients who are serving conflicting roles when trying to make decisions in the name of the ward.

What is a guardian?

Typically, a guardian is a person (or sometimes an entity, such as a financial institution), who is appointed by the court to handle another person’s real and personal property and/or to take care of the person (referred to as “the ward.”) (more…)