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Legal procedures for determining incapacity

On Behalf of | Apr 11, 2022 | Estate Planning

A person in Florida who lacks the ability to make decisions for him or herself may be granted a guardian. A family court can intervene to determine the mental and physical state of the individual and decide the next step to take. There are certain procedures that the court goes through to determine incapacity.

A hearing

A family court must schedule a hearing to determine a person’s incapacity. First, the court must file a notice of a petition to determine incapacity and appoint a guardian. Notices must be given to the alleged person and his or her attorney and family members. The alleged person and attorney have to appear in court at the hearing.

An examining committee

After the petition is filed, the court has to create an examining committee to determine the individual’s incapacity. This committee consists of three professionals that include a psychiatrist or other type of physician. One of the professionals must have specialized knowledge in the type of incapacity that is being addressed.

Comprehensive examination

A comprehensive examination is required for an allegedly incapacitated person and includes written reports of the person’s physical examination, mental health examination and functional assessment. This report must include a medical diagnosis, prognosis and treatment plan. This comprehensive report is used to determine the need for guardianship.

The rules for incapacity

A court is required to schedule professional examinations and discussions to determine a person’s mental or physical incapacity. Every person has to be carefully reviewed to decide if a guardianship is appropriate or not appropriate. In addition, an individual who becomes incapacitated can retain her or his legal rights and continue making independent decisions.