When someone can no longer manage personal or financial decisions, family members may consider guardianship. In Florida, the court must first decide whether the person is legally incapacitated. That decision is made at a capacity hearing after medical and functional evaluations.
What does the examining committee do?
Before the hearing, the court usually appoints a three-member examining committee. This committee must include at least one doctor or psychiatrist. The other members may include psychologists, nurses, social workers or other professionals with relevant experience. One member must know about the type of incapacity alleged.
Each member examines the person and checks their ability to use specific legal rights. The committee then prepares written reports on the person’s diagnosis, abilities, limits and rights.
What happens at the hearing?
After the committee turns in its reports, the court holds a hearing. The person generally has the right to attend unless the right is given up or the court finds a good reason for their absence. The person may speak in court, show evidence, call witnesses and question witnesses. The court – not the examining committee – makes the final decision. Legal inability generally must be proven by clear and convincing evidence.
If the court finds incapacity, it must name the specific rights the person cannot use. The court generally limits any removal of rights to those affected by incapacity.
What happens after the decision?
If the court finds incapacity, it enters a written order describing the scope of the incapacity and the rights affected. The court may also consider whether a less restrictive option could meet the person’s needs.
A guardianship hearing can affect important rights, so the committee reports and hearing evidence matter. A lawyer familiar with Florida guardianship law can help explain the process and protect the person’s rights.