Blogs from August, 2022

Two people holding hands one in wheelchair

In the United States, a person is considered legally incompetent if they cannot care for themselves or manage their affairs. This can be due to a mental illness, intellectual disability, or dementia. Often, family members or friends will petition to have a loved one declared incompetent to manage their affairs and protect them from harm. However, proving a lack of mental capacity can be difficult, and the process can be expensive and time-consuming. Here we will discuss what is involved in establishing a lack of mental capacity and how you can go about doing so.

Mental Incapacity: What is it?

The legal definition of incapacity is the inability to carry on the everyday affairs of life or to care for one's person or property with reasonable discretion due to a mental illness or significant cognitive impairment. Various factors can cause it, including physical, mental, and emotional aspects. While it can seem like a broad concept, there are many ways to prove a lack of mental capacity. For example, those who have the following problems may be deemed mentally incapacitated:

  • Dementia
  • a severe learning disability
  • a brain injury
  • lack of sight or hearing

How is Lack of Mental Capacity Proven?

Under the Uniform Probate Code and Florida state law, a person must meet the following conditions to make a will:

  • The person understands the nature of the testamentary act
  • They understand and recollect the nature and situation of their property
  • They know the persons who are the natural objects of their bounty
  • They understand how the disposition of the property is to occur

Legal professionals must provide concrete evidence to prove that someone lacks the mental capacity to make decisions. This evidence can come from various sources, including medical records, witness testimony, and psychological evaluations.

What is the Testamentary Capacity Instrument (TCI)?

Florida Statute 732.501 requires, amongst other things, that the testator be "of sound mind" when executing the Will. A testamentary capacity instrument measures capacity based on the four elements mentioned above set forth by Florida law. More importantly, however, is the TCI's section tests the person's susceptibility to undue influence.

Proving Incapacity: A Step-by-Step Guide

While the process of proving a lack of mental capacity can be complex, there are some steps that you can take to make it easier. Here is a general overview of the process:

  1. A petition needs to be filed in the county where the person resides
  2. A notice of the hearing must be given to the person and their relatives
  3. A doctor's report must be provided that outlines the person's incapacity
  4. The court will then hear from witnesses and review evidence to determine if the individual is incapacitated
  5. If the court finds that the individual is incapacitated, a guardian will be appointed

Having an experienced attorney by your side throughout this process is essential to ensure everything is done correctly and protect your family's interests.

Adrian Philip Thomas, P.A. Is Here to Help

The attorneys at Adrian Philip Thomas, P.A. have decades of experience providing families with the legal guidance they need. We are dedicated to providing our clients with a smooth and efficient process from start to finish.

If you or someone you know needs to help to prove a lack of mental capacity, contact us today through our website or give us a call at (954) 764-7273 to schedule your consultation today!

Most Recent Posts from August, 2022