Determining Incapacity in a Guardianship Case
When an individual is no longer capable of handling his or her own day-to-day affairs, including financial and legal matters, it may become necessary to appoint a guardian. Whether a guardian needs to be appointed hinges on whether the individual in question lacks capacity — but how is incapacity actually determined? Here is a look at the process:
- Appointment of an examining committee: Once a petition to determine incapacity has been filed, the court will appoint a three-person examining committee. That committee must consist of at least one psychiatrist or other physician, along with two other members who are medical or mental health professionals or have sufficient knowledge, experience, training or education to constitute being seen as an expert. At least one committee member must have specific expertise in the area of alleged incapacity.
- Examinations by the committee: Each of the three committee members is required to examine the individual to determine capacity. This must include a physical examination, an assessment of ability to function and a mental health examination.
- Submission of written reports: Following the examinations, each committee member must submit a written report. This report should include the results of the examinations, information about those present, diagnostic information, recommended treatment plans and a determination of whether the individual lacks capacity in any of the areas in question.
- Reaching a decision: A declaration of incapacity requires that a majority of the committee members find the individual lacks capacity. If such a majority exists, the court will likely rule to that effect, and the guardianship case may proceed.
If you’re faced with the difficult decision to pursue guardianship for an older adult or other loved one, meet with a skilled Florida estate planning attorney at the Charles Law Offices.