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Definition of “Incapacitated Person”

Section 744.102(12) of the Florida Statutes provides that an “incapacitated person” is “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.” A person is deemed to lack the capacity to “meet essential requirements for health or safety” if the person is unable to obtain health care, food shelter, clothing, or maintain personal hygiene without the likelihood of “serious and imminent physical injury.” F.S. 744.102(12)(b).

Persons Who May File a Petition to Determine the Incapacity of Another Person

Any adult person may petition to determine the incapacity of another person; however, attorney’s fees and costs may be assessed against the petitioner if the court finds that the petition was filed in bad faith.

Preparation and Service of a Petition to Determine Incapacity

A Petition to Determine Incapacity must be signed, under oath, and must state the name, age and present address of the petitioner and the alleged incapacitated person. The Petition must also allege the petitioner’s relationship to the alleged incapacitated person, the reasons why the petitioner believes that the alleged incapacitated person is incapacitated, and the names, relationships and addresses of the next of kin of the alleged incapacitated person.

After the Petition to Determine Incapacity has been filed, a copy of the Petition and notice of filing, which sets forth the time and place of the incapacity hearing, must be served on the alleged incapacitated person, counsel for the alleged incapacitated person, and all net of kin.

Examining Committee

The Court must appoint a committee to examine the alleged incapacitated person’s capacity within five days of the date that the Petition to Determine Incapacity was filed with the Court. The examining committee is made up of three members, at least one of whom must be a psychiatrist or other physician. Within fifteen days of being appointed, each member of the examining committee must complete a comprehensive examination of the alleged incapacitated person and file a report that sets forth their findings with regard to the alleged incapacitated person’s mental and physical state.

If a majority of the examining committee members file reports which state that the alleged incapacitated person is not incapacitated, the Petition to Determine Incapacity must be dismissed. On the other hand, if a majority of the examining committee members conclude that the alleged incapacitated is in fact incapacitated, then an evidentiary hearing on the Petition to Determine Incapacity will be set within 14 days after the filing of the examining committee members’ reports.

Hearing on Petition to Determine Incapacity

At the evidentiary hearing on the Petition to Determine Incapacity, the petitioner has the burden of proving the partial or total incapacity of the alleged incapacitated person by “clear and convincing evidence.” Florida case law provides that a finding of incapacity by clear and convincing evidence is not precluded by conflicting testimony of experts. Smith v. Smith, 917 So. 2d 400 (Fla. 5th DCA 2005). The appointment of a guardian, however, is not an automatic result, even in cases in which a person’s incapacity has been established by clear and convincing evidence. This is because the imposition of a guardianship will only occur in cases in which the court finds that there are no other alternatives to address the problems of the incapacitated person. In other words, the appointment of a guardian will only take place when the court finds, by clear and convincing evidence that: (1) a person is incapacitated; and (2) there is no sufficient alternative to guardianship to address the incapacitated person’s problems.