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How is incapacity determined and who makes the decision?

You’ve seen the signs that your elderly loved one can no longer care for themselves and, after a consultation with an elder law attorney, you
decide to file a guardianship. A guardianship is granted only when a Court determines that the person is incapacitated. Though in your mind you’ve decided that is the case, a Judge will require more than that to make a determination of incapacity.

An incapacitated person as defined in Florida Statute 744.102 (12)  ‘lacks capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.’ But this lack of capacity must be “judicially determined.” What does the Judge base the decision on?

Florida Statute 744.331 lays out the procedures to determine incapacity. Within five days after a petition for determination of incapacity is filed, the Court appoints a three member examining committee. One of the members must be a psychiatrist or other physician. The other two must either be a psychologist, gerontologist, physician, registered nurse, nurse practitioner, licensed social worker, or other person determined by the court to form an expert opinion.

All three members of the examining committee will schedule a time to perform a comprehensive examination of the person that includes a physical examination, mental health examination, and a functional assessment. They may also consider previous examinations. Each examining committee member will file a report with the clerk of court within 15 days after appointment.

A hearing on the petition to determine incapacity will be filed at least 10 days, but no longer than 30 days after the filing of the last filed report of the examining committee member. At the hearing, the Judge will determine either partial or total incapacity. Determining incapacity is a serious matter and for that reason the court will only remove the rights that they find the person truly does not have capacity to exercise. An Order Determining Incapacity will be entered stating the findings.

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