The loved ones of an individual must file the paperwork on his or her behalf to officially declare the individual as incapacitated. This signifies that the person is unable to exercise certain rights, so someone else has the legal ability to make them for the individual.

An incapacitated person may require someone to legal financial and legal decisions, but that individual still retains certain legal rights: A person cannot lose all of his or her rights. A Florida statute outlines everything an incapacitated person retains, and it is critical for all of the family members to be aware of these rights before pursuing this path.

Rights during a hearing

The individual alleged to have gone through incapacitation has certain rights throughout the trial. During this hearing, the person has a right to remain silent and refuse to testify at the hearing. The court cannot hold the individual in contempt for refusing to testify. It is also important to bear in mind that the refusal to testify cannot go into evidence as proof of incapacity.

The individual has a right to call witnesses to the stand and cross-examine those witnesses. The person also has a right to have the hearing remain open or closed depending on his or her wishes.

Rights after determining incapacitation

Even after the person has received a declaration of incapacitation, he or she can still pursue an annual review of the guardianship plan and have rights limited or loosened as the court sees fit. In some cases, a person the court declared incapacitated can receive a status back to capacity in the earliest possible timeframe the court can allow.

The individual has a right to receive humane treatment and have adequate protection against neglect, abuse and exploitation. The incapacitated person has a right to the best guardian possible, which can include stating a preference of who will oversee all activities. The court does not have to abide by this request, but the person has a right to state it.