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How does a Florida court determine mental incapacity?

Most Florida residents know that once an individual no longer has the physical or mental capacity to think and act independently, a guardian is usually appointed to help that person. However, before a guardian can be appointed, the state of Florida must agree that the person in question is no longer capable of taking care of their own affairs. But how does Florida make this determination?

The first step in this process is that a petition to determine a person's mental condition must be filed with a Florida court. Once this petition to determine incapacitation is filed, notices of a hearing must be sent to both the attorney for the person in question as well as all relatives who are listed in the petition. The notice must include exactly where and when the hearing will take place. The person in question must be represented either by their own attorney or one that is appointed by the court.

The court will then put together an examining committee consisting of three members. One of the committee members must be a qualified psychiatrist, while the others can be a nurse or even a social worker. However, the family doctor for the person in question cannot be on the committee.

Each member of the committee then thoroughly examines the person in question. The examination must include a complete physical exam as well as a functional assessment and a mental health exam. The members must then each file a report with the court within 15 days of their examination indicating their findings. These reports are then sent to those people involved in the case.

If most of the committee members agree that the person in question does not suffer from any mental incapacity, then the court can dismiss the petition. However, if the reports from the committee indicate that the person is incapacitated, then the court will conduct an adjudicatory hearing for the original petition. The person's incapacity will then be determined at this hearing. A written order from the court can then be drawn up.

Filing for guardianship for a family member requires thoughtful planning. Any Florida resident who is considering this process may want to speak with an estate planning attorney in order to fully understand the complexities of the process.

Source: leg.state.fl.us, "The 2015 Florida statutes," Accessed Sep. 29, 2015

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