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Any adult may file a petition requesting that a circuit judge determine the incapacity of another person with the clerk of the circuit court for the county where the alleged incapacitated person resides or is found. The circuit judge will then appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be a psychologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker or other person who by knowledge, skill, experience, training or education may advise the court in the form of an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition. The circuit judge must also appoint an attorney to represent the person alleged to be incapacitated.

If the examining committee decides that the person is not incapacitated in any respect, the circuit judge must dismiss the petition for incapacity. If the examining committee decides that the person is incapacitated in any respect, a hearing will be held by a circuit judge. The person alleged to be incapacitated must be present at the hearing, unless this right is waived by the alleged incapacitated person or his or her attorney or unless good cause can be shown for the alleged incapacitated person’s absence.

A person may be determined to be incapacitated by a court of law when he or she lacks the ability to manage at least some of his or her property or to attend to at least some of his or her essential health and safety requirements. A person is considered unable to manage his or her property if he or she cannot take the necessary actions to obtain, administer, and dispose of his or her real and personal property. A person is considered unable to meet the essential requirements for health or safety if he or she cannot take the necessary actions to provide health care, food, shelter, clothing, personal hygiene, or other care without which serious and immediate physical injury or illness is likely to occur.

The alleged incapacitated person’s incapacity must be established by clear and convincing evidence. After hearing all the evidence, the circuit judge may still dismiss the petition if there is insufficient evidence to support a finding of incapacity. However, a circuit judge may determine a person to be totally incapacitated if he or she is incapable of exercising all his or her nondelegable and delegable rights. Nondelegable rights are the right to marry, vote, personally apply for government benefits, have a driver’s license, travel, or seek and retain employment. Delegable rights are the right to contract, sue and defend lawsuits, apply for government benefits, determine residency, consent to medical and mental health treatment, manage property, or make gifts of property or decide social environment or other social aspects of life. The judge will then assign the incapacitated person’s delegable rights to a guardian appointed by the judge.

A competent adult may designate in advance the person he or she wants to subsequently be his or her guardian by signing a written document that names a person to serve as his or her guardian in the event of a subsequent incapacity. The written declaration must reasonably identify this preneed guardian and be signed in the presence of at least two attesting witnesses. A person may file his or her declaration with the clerk of the court. If a petition for incapacity is subsequently filed, the clerk of the court must produce this declaration to the circuit judge. Such a declaration in an incapacity proceeding constitutes a rebuttable presumption that the preneed guardian should serve as the guardian. However, the circuit judge is not be bound to appoint the preneed guardian if this named person is determined by the circuit judge to be unqualified to serve as the guardian.

When a person is appointed the guardian of an incapacitated person’s property, a bond must be posted by the guardian for at least the full amount of the ward’s cash on hand and on deposit, together with the value of the ward’s promissory notes and bonds and the value of all other intangible personal property, such as stocks, that can readily be traded for cash. The bond must be filed with the clerk before a person can begin to serve as the guardian of the property. The amount of the bond can be lowered if the court orders some of the ward’s cash or deposits to be restricted for use only with a subsequent court order. Even if the ward had the right to revoke the trust, the assets previously transferred to a trust are not considered guardianship assets. The assets owned by a trustee of the ward’s revocable trust are not counted in determining the amount of the guardianship assets subject to a bond.

If a petition to determine the incapacity of a person is filed, the right of the agent to use the durable power of attorney is suspended until the circuit judge determines the capacity of the person who established the durable power of attorney. If a finding is made that the person who signed the durable power of attorney is incapacitated, the durable power of attorney will remain suspended until the capacity of the person who signed this durable power of attorney is restored.

In each proceeding in which a guardian is appointed, the circuit judge must determine whether the ward, prior to incapacity, executed a valid advance directive. An advance directive means a witnessed written document in which instructions are given or in which a person’s desires are expressed concerning any aspect of his or her health care. An advance directive may include, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift. If any such advance directive exists, the court shall specify in its order of guardianship what authority, if any, the guardian shall exercise over the surrogate or agent named in the advance directive. The court, may, with prior notice of a hearing given to the surrogate and other interested parties, subsequently modify or revoke the authority of this surrogate or agent to make health care decisions.

The Florida statutes state that a competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity. The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time. The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration. Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian. If a person designated as a preneed guardian is qualified to serve pursuant to the Florida statutes governing who can be appointed guardian, the court must appoint any standby guardian or preneed guardian. The only exception is when the court determines that appointing such person is contrary to the best interests of the ward.

This page is excerpted from the Florida Senior Legal Guide.