Legal incapacity refers to someone’s lack of adequate mental capacity to make important legal decisions. Incapacity could require a family to appoint a guardianship on the incapacitated person’s behalf, so a trusted person can make estate-related decisions instead.

In the context of estate law, incapacity means the inability to plan an estate, draft documents such as wills and trusts, or make legal decisions regarding personal property. Understanding incapacity could help a family know when to intervene.

Obtaining a guardianship in Florida

A guardian is a court-appointed person who takes care of an incapacitated person’s assets. A guardian has the legal responsibility of an incapacitated person’s decision-making regarding an estate. To assign a guardian, a family in Miami-Dade County must prove the person in question is legally incapacitated. This takes using a special committee that often consists of subject-matter experts, physicians and attorneys to present evidence proving the incapacitated person’s status.

How to prove incapacity

Proving incapacity before a court may require professional litigation. Obtaining an adult guardianship can be a difficult process filled with emotional tension. Issues the case may need to cover include whether the person in question is mentally incapacitated, whether the person needs a guardian, who should take this responsibility, what rights the guardian should have and how to handle the person’s assets. Proving incapacity can be a tough task for a family.

When creating a guardian is necessary

The most common issue that leads to appointing an adult guardian in Florida is a mental illness that causes incapacity. A person could suffer dementia, Alzheimer’s, a brain injury or age-related mental health decline that makes it dangerous or unreasonable for him or her to retain control over an estate. Someone may be incapacitated if he or she can no longer handle asset distribution decisions in a responsible way. At this point, creating a guardianship could be in the family’s best interests.