Understanding Incapacity

Our Boca Raton Guardianship Law Firm Explains Guardianship Matters Involving Incapacity

If you have ever witnessed a family member or close friend age into advanced years, you may have noticed that, at times, they do not seem as mentally sharp as they once were. Mental decline is an unfortunate, yet natural, part of the aging process, and it presents challenges for seniors as they must continue to attend to the day-to-day realities of their lives. If this mental decline becomes advanced enough — for example, if the senior suffers from dementia or Alzheimer’s — they may no longer be capable of seeing to their own affairs. In those cases, a concerned relative or court-appointed individual may step in to act as a guardian. But how do courts determine when a person has lost enough of their mental capacity to necessitate guardianship? Our Boca Raton guardianship law firm explains what you need to know about this emotionally wrought situation. 

What is “Incapacity”?

The Florida Statutes define an “incapacitated person” as a person who has been judicially determined to lack the 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. This definition is very broad and is intended to encompass a wide range of circumstances. For example, an individual might meet this definition based on a medical diagnosis (such as a diagnosis of Alzheimer’s), or they could meet it simply by reaching an advanced state of physical frailty that prevents them from properly caring for themselves.

How Courts Determine Incapacity

The broadness of the statutory definition of incapacity allows courts the discretion to make capacity determinations on an individual, case-by-case basis. As such, they are intensely fact-specific. Capacity determinations begin when a potential guardian files a petition to determine capacity with the court. The court will then appoint an attorney for the alleged incapacitated person and assemble a three-member examining committee. One member of the committee must be a psychiatrist or other physician, while the other two may be psychologists, gerontologists, registered nurses, social workers, or any other person qualified to render an expert opinion. This committee will then examine the alleged incapacitated person to determine their mental capacity.

The committee must take a number of factors into consideration when evaluating the alleged incapacitated person’s abilities. Some of these factors include:

  • The alleged incapacitated person’s ability to
    • contract
    • marry
    • vote
    • seek or retain employment
    • obtain a driver’s license and operate a vehicle
    • sue and defend lawsuits
    • apply for government benefits
    • manage property or make gifts or dispositions of property
    • determine his or her residence
    • consent to medical and mental health treatment
    • make decisions about his or her social environment or other social aspects of his or her life

If a majority of the members of the examining committee agree that the alleged incapacitated person lacks the capacity to engage in one or more of the above activities, the court may enter a finding of incapacity and appoint a guardian.

Contact Our Boca Raton Guardianship Law Firm to Discuss Your Situation 

If you believe that someone you care about may no longer possess the capacity to take care of themselves, you may want to explore your options for initiating guardianship proceedings. For more information about judicial determinations of incapacity and guardianship, contact the Boca Raton guardianship attorneys at the Ellis Law Group by contacting us online or calling 561-910-7500.

Latest News

Using Asset Protection Planning to Protect Real Estate

Wed Sep 30, 2020

For many people, the real estate they own is among their most valuable assets, if not the most valuable assets. As unpleasant as it may be to consider, your real estate holdings may be at risk In the event of unexpected financial difficulties or legal action. An experienced Boca Raton […]

Full Read

How to Avoid Problems with Your Living Trust

Wed Sep 16, 2020

Estate planning is an investment in your future and your family’s security. Unfortunately, there are no easy solutions – careful planning and frequent reviews are the keys to a solid estate plan. A one-size-fits-all estate plan that you create and then forget about is bound to cause frustration at the […]

Full Read

Use It or Lose It? Gifting Considerations Before the November Election

Wed Sep 2, 2020

Estate Planning, Regardless of Net Worth Although the primary audience for this article is high net worth individuals (individuals whose assets are in excess of the estate/gift tax exemption amount) who may take advantage of sophisticated gifting strategies, estate planning is not just for the ultra-wealthy. Estate planning encompasses a wide […]

Full Read
More News