The process of declaring incapacity begins with filing a notice of petition to determine incapacity. In Florida, the court will appoint an examining committee to determine whether the person in question is actually incapacitated. The three examining committee members should include a skilled medical professional and two others with either a professional medical background, an advanced degree in gerontology or a court-mandated expertise in a related field. They should not have any personal interest in the case.
These individuals will use their knowledge, training and experience to determine the person’s incapacity. They will examine if the person lacks the sufficient mental capacity to make legal and financial decisions concerning their estate.
What happens when the examining committee confirms incapacity?
The examining committee members will present their expert opinion and report it to the court. The court will then review their testimonies and evidence before ruling that the alleged person with incapacity requires guardianship. The type of guardianship the court awards can be:
- Limited guardianship: A limited guardianship will give the appointed guardian the legal authority to make decisions on behalf of the person and their personal matters. The court typically specifies the points the guardian has power over. The court awards limited guardianship when the ward is still capable of managing their estate despite their impairments or illness.
- Plenary guardianship: A plenary guardianship gives the appointed guardian the authority to exercise all delegable legal rights and powers of the incapacitated individual. They can act on behalf of the individual and the individual’s estate.
In Florida, the court will usually award guardianship to a relative or spouse. However, competent adults can appoint a guardian before they need one.
Incorporating guardianship in an estate plan
Preneed guardianship is when a person uses estate planning to designate someone whom they want to act on behalf of them in the case of incapacity. Choosing the right guardian to care for you and your estate is vital to any estate plan. You want someone you trust who will act in your best interests in the case of death or incapacity.