To learn more about the incapacity proceeding in a Florida guardianship, please consult our estate planning and guardianship attorney at Wood, Atter & Wolf, P.A. located in Jacksonville and Ponte Vedra Beach, Florida.
Incapacity of a potential ward is determined under Florida statute 744.331. This statute is quite long and so I will walk you through it should you ever find yourself in the middle of a guardianship proceeding.
If a guardianship proceeding is brought to determine that someone is no longer able to take care of their own finances, a notice of the filing of the petition to determine incapacity and a petition for guardianship but be served on and read to the alleged incapacitated person, their attorney and all next of kin identified in the petition. The notice must give the time and place of the hearing, that an attorney has been appointed to represent the person and a guardian will be appointed if it is determined that the alleged incapacitated person does in fact lack capacity.
The attorney appointed by the court for the ward must be pre-approved by the court to serve as the attorney for wards in guardianship cases. Once an attorney is appointed, the ward may substitute his or her own attorney for the appointed attorney. The attorney representing the ward may not serve as the attorney of the guardian or the guardian due to a conflict of interest. The attorney must have completed at least 8 hours of legal education in guardianship.
After the petition for determination of incapacity has been filed, the court then appoints an examining committee consisting of 3 members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, another physician, a registered nurse, nurse practitioner, licensed social worker or another person with knowledge, skill, experience, training or education may advise the court in the form of an expert opinion. One of the three members must have knowledge in the area of the alleged incapacity. Unless good cause is shown, the primary care physician of the ward may not be appointed to the committee. However, the committee may consult with the primary care physician. Finally, none members of the examining committee can be related to the ward, petitioner, attorney or anyone else on the examining committee.
Each person on the examining committee must examine the potential ward and determine what rights under 744.3215, if any, need to be taken away from the potential ward. The report of the examining committee member is due to the court within 15 days of their appointment. The examining committee may use all reports available to them in determining what rights to take away.
Each committee member shall perform an examination on the alleged ward which shall include (i) a physical examination, (ii) a mental health examination and (iii) a functional assessment. If any of the three aspects of the report cannot be accomplished, then the committee member must state why they could not accomplish that aspect. The written report must also include:
1. If possible, a diagnosis, prognosis and recommended course of treatment;
2. An evaluation of the potential wardâs ability to retain their rights;
3. The results of the comprehensive examination and the committee memberâs assessment of the information provided by the attending primary care physician, if any;
4. 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;
5. The names of all persons present during the examination. If anyone answers a question other than the potential ward, the report shall say who gave the answer and what the answer was; and
6. The signature of the committee member.
If a majority of the committee determines that the potential ward still has capacity, the proceeding is over. If the committee determines the potential ward lacks capacity, the court shall enter an order determining such incapacity.