The Rights of the Alleged Incapacitated Person

The path to a guardianship begins with a petition to determine incapacity. Next, there is an examination of the alleged incapacitated person by a three-person examining committee. Finally, there is a hearing on the matter where there must be clear and convincing evidence that the alleged incapacitated person is in fact incapacitated and that their rights should be removed.

The process of obtaining a court appointed guardianship is not easy. Courts view the removal of a person’s rights as a final option and do not grant guardianships without conducting a thorough review and exhausting all other options. The court places an extremely high value on protecting the alleged incapacitated person and their rights. A person alleged to be incapacitated is entitled to procedural due process in determining incapacity. According to Florida Statute, an alleged incapacitated person has the right to:

(1) Remain silent and refuse to testify at the hearing. The person may not be held in contempt of court or otherwise penalized for refusing to testify. Refusal to testify may not be used as evidence of incapacity; (2) Testify; (3) Present evidence; (4) Call witnesses; (5) Confront and cross-examine all witnesses; and (6) Have the hearing open or closed as she or he may choose. Fla. Stat. § 744.1095.

The alleged incapacitated person must be afforded the rights mandated in the statute. These statutory provisions recognize the great limitations on personal liberty and autonomy which are inherent in the appointment of a plenary guardian. Florida Statute Section 744.331(5)(c) goes as far as saying that the alleged incapacitated person must be “incapable of exercising his rights at all, whether wisely or otherwise.” Thus, it is a determination of the inability to exercise rights by clear and convincing evidence, not of whether the exercise of those rights was well reasoned.

Clear and convincing evidence is a high burden to overcome. In 2012, in Losh v. McKinley, the Third District Court of Appeal found there was not clear and convincing evidence for a determination of incapacity based on conflicting reports by the examining committee members and the alleged incapacitated person’s own coherent testimony. See Losh v. McKinley, 86 So. 3d 1150 (Fla. 3d DCA 2012). An important factor in the court’s reasoning was ensuring that the rights of the alleged incapacitated person were protected during the proceedings. In Losh, the Court found that “[t]he most convincing evidence of [the alleged incapacitated person’s] capacity,… was the testimony of [the alleged incapacitated person].” 86 So. 3d at 1153. Since the alleged incapacitated person was able to give detailed and coherent testimony regarding finances, the court did not remove any rights. Largely because the reports from the examining committee and other evidence were conflicting, the court did not find that the evidence of incapacity rose to the threshold of clear and convincing and determined that the alleged incapacitated person was able to exercise her rights. Again, the court is not assessing the alleged incapacitated person’s reasoning; rather, the ability to understand and act in the ordinary affairs of life is central factor of the inquiry, i.e., vulnerability is not grounds for incapacity.

Incapacity is not a tactic or something to be taken lightly, as evidenced by the courts holding in Losh. Capacity for each right is assessed individually. For each right, there must be clear and convincing evidence that the alleged incapacitated person was not able to exercise that right and could, therefore, not understand or act in the ordinary affairs of life. Often, as with the lower court in Losh, courts overstep their bounds in an effort to protect people they think can be easily taken advantage of. It is well settled law that the susceptibility to undue influence or fraud is not grounds to remove a person’s rights. It is not within the purview of the courts to marshal a person’s decisions or vulnerability. The court is there to be the final determinant of whether an alleged incapacitated person has the ability to carry out and understand basic life activities.

If you or someone you know would like to file or contest a petition for guardianship, the lawyers at Chepenik Trushin LLP can help.

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