Florida Probate Litigation Lawyer Blog

It is an unfortunate but inevitable fact of life that, as we grow older, there is a tendency for our mental abilities to begin to fade. When a person’s mental abilities fade to the point where they can no longer look after their own interests and are unable to understand the implications of certain decisions, in legal terms they are said to be “incapacitated.” Sometimes it becomes necessary for family members to step in and take control of some aspects of the incapacitated person’s life and their finances. This can be a very difficult and emotional process, since many times the incapacitated person is extremely resistant to giving up control, especially when that person has always taken great pride in being independent. Although there may be slight differences in the procedures to determine incapacity between Miami-Dade, Broward and Palm Beach counties, the Florida Statutes set forth general guidelines for the determination of incapacity.

The first step of the process occurs when a person files sworn papers with a court stating that they believe an individual is incapacitated. The court will then prepare a notice for hearing that set a time and place for an initial hearing to determine if the person actually is incapacitated. These documents, by law, must be shown to the person claimed to be incapacitated as well as his or her attorney and immediate family members, because they all have a right to be at the hearing. Those documents will also appoint an attorney for the person claimed to be incapacitated, although he or she is welcome to select his or her own attorney if they are able. Sometimes the court will appoint a person to act as the emergency temporary guardian of an incapacitated person. The emergency temporary guardian’s purpose is to make sure the incapacitated person’s rights and needs are accounted for.

Next, the court will appoint a committee of three people to decide if the person is incapacitated. One member of the committee must be a doctor. The other two members can also be doctors or they can be psychologists, nurses, or anyone the court believes has enough experience and education. Even though the personal doctor of the person cannot be on the committee, the committee members are required to consult with him or her. If the person claimed as incapacitated does not speak English, an interpreter will be provided so that he or she can communicate with the committee. This is because a person has a right to speak up against being declared incapacitated because taking away a person’s liberty, even if it is for their own good, is involves the removal of fundamental rights. Such rights are afforded serious and substantial protections under the law.

After the examining committee completes the examination of the person, it submits a report and recommendations to the court. The court then makes the final decision after everyone involved has a chance to present evidence to the court at an evidentiary hearing. The court determines not only if the person is incapacitated, but how the person is incapacitated. If the person is only incapacitated in certain areas, their freedom to make decisions for themselves is only restricted in those specific areas. If a person’s liberties and freedoms absolutely must be taken away for their own safety, it is very important that the only liberties and freedoms taken are ones that are absolutely necessary. By law, the court must institute the less restrictive means by which to protect the person and property of the incapacitated person.

Because having a loved one declared incapacitated, or being declared incapacitated oneself, is a very serious thing, it is important to have guidance during what can be a difficult and painful process. If you or someone you know is dealing with such a situation and live in the West Palm, Fort Lauderdale, or Miami-Dade area, feel free to contact the experienced attorneys at Chepenik Trushin who can counsel and guide you through the process and ensure that your or your loved one’s rights are respected. Please feel free to contact us for an initial first consultation.

In Florida, “lineal descendant” or “descendant” is defined to mean “a person in any generational level down the applicable individual’s descending line.” Essentially, a descendant is a blood-relative of the deceased. Under Florida law, adopted children are also considered descendants for the purposes of Probate.

So what does this really mean? Suppose John, a resident of Fort Lauderdale, Florida, makes a will that simply states, “I leave everything I own to my lineal descendants.” Now, suppose John has two children from his previous marriage (related by blood), and his second wife, Jane, has two children from her previous marriage, neither of which John has adopted. This means, if John dies without modifying his will, John’s step-children receive nothing.

John’s step children will receive nothing because, under Florida law, a technical term, such as “descendant,” used in a Will, is accorded its legal definition unless obviously used by the deceased in a different sense. Additionally, in construing a will, the courts look to the intent of the deceased and try to give effect to the deceased’s wishes. In determining the intent of the deceased, the courts look to the wording of the will. If the will says the word “descendant,” and the word is not defined, the court will assume that the deceased intended “descendant” to have its ordinary legal meaning.

If John chooses to modify his will to include his step-children, he can still include the term “descendant,” but he must evidence his intent to expand the definition of descendant to include step-children. Also, under Florida law, the intent to expand the definition to include step-children must be obvious on the face of the will. However, if John does not want to modify his will, he could instead take the appropriate steps to adopt Jane’s two children. If John adopted Jane’s two children, Jane’s two children could inherit from John under the Florida definition of “descendant.”

How should someone make their intent to expand the definition of descendant obvious? For example, John could include a clause in his will, that stated, “For purposes of this Will, the term “descendants” shall include, in addition to my natural and adopted children, the children of my wife, Jane.” This statement shows that John considers his children as well as his step-children to be his descendants.

If you or someone you know lives in the West Palm, Broward or Miami-Dade area and are either planning to create a will, revising a will or has a dispute about a will, the probate team at Chepenik Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.