Blogs from September, 2011


There are certain procedures that need to be followed in seeking the determination of incapacity and the appointment of a guardian.  Needless to say, they are quite stringent.  Florida courts understand the gravity of implementing a guardianship and do not take such a course of action lightly.  The relevant statutes in determining incapacity are found in Chapter 744, Florida Statutes, along with the Guardianship Rules within the Florida Probate Rules.

The first step in the process is having your attorney file a petition to determine incapacity.  This petition must be filed in the county where the alleged incapacitated person resides or is found.  In addition, it must be signed by the party seeking such a determination under penalties of perjury (also known as a “verified petition”).  Pursuant to Fla. Stat., 744.3201(3), a petition for the appointment of a guardian must be filed simultaneously with the petition to determine incapacity.  If the petition to determine incapacity is dismissed for lack of a finding of incapacity, and there is a further finding that the petition was filed in bad faith, the court may assess costs against the petition pursuant to Fla. Stat., 744.331(7)(c).

The court has the authority to declare a person unable to perform or exercise the following rights (but not delegate them to the guardian): to marry; to vote; to personally apply for government benefits; to have a driver’s license; to travel; to seek or retain employment.  Other rights that may be removed and may be delegated to the guardian include the following: to contract; to sue and defend lawsuits; to determine his or her own residency; to consent to medical treatment; to manage property or make any gift or disposition of property, and to make decisions about his or her social environment or other social aspects of his or her life.

Once the petition has been filed with the court, along with payment of all of the proper filing fees, the court appoints an attorney to represent the alleged incapacitated person (“AIP”).  This court-appointed attorney for the AIP represents the expressed wishes of the AIP consistent with the rules regulating the Florida Bar.  In addition, the court appoints an examining committee to determine the mental capacity of the AIP.  Depending on the county where the proceedings are held, the examining committees are either selected by the mental health clerk and appointed by the court or they are selected from a local list by the attorney for the proposed guardian.  Each committee member performs an assessment of the AIP and prepares a report, which is provided to the court and appropriate counsel.  The court relies heavily on these committee reports in making its own determination on whether the AIP is, in fact, incapacitated.

While making a determination on an AIP’s incapacity, the court will always consider whether there is a less restrictive alternative to guardianship.  One such alternative is a durable power of attorney.  If the person has the mental capacity to execute a durable power of attorney document, the guardianship may be avoided.  However, a durable power of attorney does not provide the attorney-in-fact with the power to force the maker of the document to do anything that the maker does not want to do.  It simply provides the attorney-in-fact with the right to perform the tasks outlined in the document.

Another such alternative is a designation of health care surrogate.  If such a surrogate has been designated in writing, he or she has the authority to make the medical decisions for the person.  Some documents also provide the surrogate with the right to make decisions on the person’s mental health as well.

If a person’s quandary pertains to his or her assets and those assets are jointly owned, the other joint owner can act without the consent of the other, depending on the type of assets it is.

Fla. Stat. §393.12 provides for a Guardian Advocate for developmentally disabled persons.  Such a guardian may be appointed without the necessity of a determination of incapacity.  Additionally, this guardian may make all medical and residency decisions.  Fla. Stat. §394.4598 provides for the appointment of a guardian advocate for the purposes of mental health decisions only.  This guardian is appointed when a patient in a mental health facility has been found to be incompetent to consent to his treatment.


Most Recent Posts from September, 2011