Delegable rights are the right to contract, sue and defend lawsuits, apply for government benefits, determine residency, consent to medical and mental health treatment, manage property, make gifts of property, or decide social environment or other social aspects of life. Non-delegable rights include the right to marry, vote, personally apply for government benefits, have a driver’s license, travel, or seek and retain employment. However, a circuit judge may determine a person to be totally incapacitated if he or she is incapable of exercising all his or her non-delegable and delegable rights. After hearing all the evidence, the circuit judge may still dismiss the petition if there is insufficient evidence to support a finding of incapacity. The alleged incapacitated person’s incapacity must be established in court by clear and convincing evidence. A person is considered unable to meet the essential requirements for health or safety if he or she cannot take the necessary actions to provide health care, food, shelter, clothing, personal hygiene, or other care without which serious and immediate physical injury or illness is likely to occur. A person is considered unable to manage his or her property if he or she cannot take the necessary actions to obtain, administer, and dispose of his or her real and personal property. The person alleged to be incapacitated must be present at the hearing, unless their appearance is waived by the alleged incapacitated person or his or her attorney or unless good cause can be shown for the alleged incapacitated person’s absence.Ī person may be determined to be incapacitated by a court of law when he or she lacks the ability to manage at least some of his or her property or to attend to at least some of his or her essential health and safety requirements. If the examining committee decides that the person is incapacitated in any respect (personal or property decisions), a hearing will be held in a circuit court. If the examining committee decides that the person is not incapacitated in any respect, the circuit judge must dismiss the petition for incapacity. The examining committee will examine the person alleged to be incapacitated and each member will submit a written report to the Court. The circuit judge must also appoint an attorney to represent the person alleged to be incapacitated. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition. One member must be a psychiatrist or other physician and the other two remaining members must be a psychologist, another psychiatrist, or another physician, a registered nurse, nurse practitioner, licensed social worker or other people who by knowledge, skill, experience, training or education may advise the court in the form of an expert opinion. The circuit judge will appoint an examining committee consisting of three members. This petition should be filed in the county where the alleged incapacitated person resides or is found. A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to care for an incapacitated person (referred to as a Ward).Īny interested adult may file a petition requesting that a circuit judge determine the incapacity of another person. Gainesville Guardianship Attorney | Lake City Guardianship LawyerĪ guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person.
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