Florida Statute 744.331 outlines the legal process that must be followed in order to have an adult deemed incapacitated in Florida. Per the Florida Statute, the process begins when a concerned family member, friend, or other interested party files two separate petitions with a Florida Court. One petition is the Petition to Determine Incapacity and the second is the Petition for Appointment of Guardianship. Both of these petitions are then served upon the alleged incapacitated person as well as read to the alleged incapacitated person by a court appointed attorney appointed to look after the best interests of the alleged incapacitated person. The court appointed attorney must be part of the court’s attorney registry or belong to the office of criminal conflict and civil regional counsel. However, the alleged incapacitated person can always substitute their own personal attorney if they choose. The alleged incapacity person’s next of kin must also be notified of the Petition to Determine Incapacity and the Petition for Appointment of a Guardian.
After an attorney has been appointed to represent the alleged incapacitated person, a three (3) person examining committee is also appointed. The examining committee is comprised of 3 persons from multiple different backgrounds including but not limited to psychologists, physicians, nurse practitioners and social workers. Their role is to examine the alleged incapacitated person and prepare and file a report with the court that complies with Florida Statute 744.331(f). Per this statute, the report must include a mental health and physical examination as well as a functional assessment. More specifically, Florida Statute 744.331(f) requires each report to contain the following:
- To the extent possible, a diagnosis, prognosis, and recommended course of treatment.
- An evaluation of the alleged incapacitated person’s ability to retain her or his rights, including, without limitation, the rights to marry; vote; contract; manage or dispose of property; have a driver license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.
- The results of the comprehensive examination and the committee member’s assessment of information provided by the attending or family physician, if any.
- A description of any matters with respect to which the person lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the determination that the person lacks that capacity.
- The names of all persons present during the time the committee member conducted his or her examination. If a person other than the person who is the subject of the examination supplies answers posed to the alleged incapacitated person, the report must include the response and the name of the person supplying the answer.
- The signature of the committee member and the date and time the member conducted his or her examination.
Once the court appointed attorney for the alleged incapacitated person as well as all 3 members of the examining committee have had the opportunity to meet with the alleged incapacitated person and filed their respective reports with the court, a hearing on the Petition to Determine Incapacity is held. The hearing is generally held roughly 30 days after the petitions were filed.
If you believe your loved one is no longer able to manage their own financial affairs or care for themselves without assistance, contact the Law Office of David M Goldman, PLLC today. An experienced attorney can help you determine wither petitioning the court to become their guardian is in their best interest. Additionally, you must be represented by an attorney in order to become a guardian in Florida. We can be reached at (904) 685-1200.