Petition to Determine Incapacity Florida

Definition of Incapacity

A person is deemed to be incapacitated if the or she has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some of the essential health and safety requirements of the person. F.S. 744.102(2). 

Rights that may be removed and delegated to the guardian F.S 744.3215

The following rights may be removed from a person by an order determining incapacity and delegated to the guardian:

(a) To contract.
(b) To sue and defend lawsuits.
(c) To apply for government benefits.
(d) To manage property or to make any gift or disposition of property.
(e) To determine his or her residence.
(f) To consent to medical and mental health treatment.
(g) To make decisions about his or her social environment or other social aspects of his or her life.

Rights that may be removed and may not be delegated to the guardian F.S 744.3215

The following rights may be removed from a person by an order determining incapacity but may not be delegated to the guardian:

(a) To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.
(b) To vote.
(c) To personally apply for government benefits.
(d) To have a driver license.
(e) To travel.
(f) To seek or retain employment.

Rights retained by the person deemed incapacitated F.S 744.3215

A person who has been determined to be incapacitated retains the following rights:

(a) To have an annual review of the guardianship report and plan.
(b) To have continuing review of the need for restriction of his or her rights.
(c) To be restored to capacity at the earliest possible time.
(d) To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
(e) To have a qualified guardian.
(f) To remain as independent as possible, including having his or her preference as to place and standard of living honored, either as he or she expressed or demonstrated his or her preference prior to the determination of his or her incapacity or as he or she currently expresses his or her preference, insofar as such request is reasonable.
(g) To be properly educated.
(h) To receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.
(i) To receive services and rehabilitation necessary to maximize the quality of life.
(j) To be free from discrimination because of his or her incapacity.
(k) To have access to the courts.
(l) To counsel.
(m) To receive visitors and communicate with others.
(n) To notice of all proceedings related to determination of capacity and guardianship, unless the court finds the incapacitated person lacks the ability to comprehend the notice.
(o) To privacy.

Procedure to Determine Incapacity Florida

Any adult person may petition to determine the incapacity of any other person. F.S. 744.3201.

Incapacity proceedings are begun when the petitioner files a Petition to Determine Incapacity. A copy of the Petition to Determine Incapacity must be served on the alleged incapacitated person, counsel for the alleged incapacitated person, and all next of kin. Rule 5.550(b)(3), Florida Probate Rules.

Within five (5) days after the Petition to Determine Incapacity is filed with Miami-Dade County Probate Court, the court must appoint an examining committee. The purpose of the examining committee is to examine the alleged incapacitated person and file a report within 15 days of appointment with his or her findings. The examining committee’s report will make a recommendations of their findings of whether the alleged incapacitated person is partially, fully, or not incapacitated. 

After the examining committee completes the report, a hearing will take place and a general magistrate will oversee the proceedings. Depending on the report of the examining committee, and other evidence presented, the Magistrate will enter an order recommending incapacity or not.

Contact an Experienced Miami Guardianship Attorney

Incapacitated proceedings are complicated and have strict deadlines. I can help you with the Petition to Determine Incapacity for your loved ones. This is a sensitive process and you should hire a guardianship attorney that understand’s your situation and has compassion.

Call us today at (305) 489-1415 or complete the form in this page. Your information is completely confidential.

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