Florida Probate & Estate Litigation: Contested Incapacity/Guardianship Hearings

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Florida Probate & Estate Litigation: Contested Incapacity/Guardianship Hearings

August 15, 2018

By: Justin C. Carlin, Esq.

Chapter 744 of the Florida Statutes outlines the procedures for having someone declared legally incapacitated and appointing a “guardian” to make some or all decisions for the alleged incapacitated person (referred to as an “AIP”).  This process is known as “involuntary guardianship.”  The process begins when the person alleging incapacity files in Circuit Court both a petition to determine incapacity and a petition for the appointment of a guardian. 

When a procedure for involuntary guardianship is initiated, the Court will appoint an attorney for the AIP to represent his or her interests.  Anyone contesting the involuntary guardianship may do so by appearing in court and declaring the proceedings to be adversarial.  The proceedings then proceed like ordinary civil proceedings according to the Florida Rules of Civil Procedure.

Involuntary guardianship involves two steps: (1) a determination of incapacity at an incapacity hearing, and (2) the transfer of rights to another (the guardian).  Before the incapacity hearing, the Court will appoint an examining committee consisting of three actors: a physician, a psychiatrist, and a social worker.  Within 15 days of the appointment, each member of the committee must individually examine the AIP and file with the Court a report containing his or her opinion as to the AIP’s capacity and the appropriate type of guardianship (limited or plenary), if any.  A copy of the report must be served on the petitioner and the attorney for the AIP within 3 days of the report being filed with the Court and within 5 days of the first day of the incapacity hearing.

At the hearing, the burden is on the petitioner for involuntary guardianship to prove, by clear and convincing evidence, that the AIP is: (1) incapacitated, and (2) there is no less restrictive alternative to guardianship.  The Court may find the AIP to have capacity, in which case the petition will be dismissed, and no further action will occur.  If the Court does not find the AIP to have capacity, then the Court must find, by clear and convincing evidence, that the AIP is either partially or totally incapacitated.  The petitioner and the AIP may object to the introduction into evidence of all or any portion of the report by filing and serving a written objection to the other party no later than 5 days before the hearing.

At the hearing, the examining committee members will also have an opportunity to testify about the capacity of the AIP.  After all the evidence is presented, the Court makes the following findings: (1) the exact nature and scope of the incapacity; (2) the exact areas in which the AIP lacks capacity to make decisions about care and treatment, or to meet essential requirements for her physical or mental health or safety; (3) the specific legal disabilities to which the person is subject; and (4) the specific rights that the person is incapable of exercising.  If the Court finds the AIP to be partially or totally incapacitated, then a guardian must be appointed for the AIP (now called a “ward”) unless a less restrictive alternative exists.  If the Court finds there is no alternative that sufficiently addresses the problems of the AIP, a guardian may be appointed.  Thus, once the Court enters an Order determining incapacity, and finds that there are no alternatives to guardianship, then the Court shifts the hearing from health to guardianship, and the process of appointing a guardian commences.

If you’re in doubt about your rights or need representation relating to a contested guardianship litigation, contact a Fort Lauderdale probate litigation lawyer at (954) 440-0901 to assist you with your dispute.  The Fort Lauderdale probate litigation lawyers at The Carlin Law Firm, PLLC regularly represent petitioners with becoming guardians over the person or property of their loved ones who lack the capacity to make decisions for themselves.

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