Procedures to Determine Incapacity in Florida

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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.

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