Florida Guardianship – How is a Person Determined to be Incapacitated?

In Florida, any adult can file a petition in state court to determine if another person is incapacitated.  If a person is determined to be incapacitated, a guardian will be appointed by the court.  People often ask us how the court determines that a person is incapacitated.  The process is explained in Florida Statute Section 744.331. 744.331(3)(a) states the following, in pertinent part:

Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. One of three members of the committee must have knowledge of the type of incapacity alleged in the petition…

According to Section 744.331(4), if a majority of the examining committee find a person not incapacitated, the court shall dismiss the petition and a guardian will not be appointed.  On the other hand, if a majority of the examining committee finds the person to be incapacitated, a hearing will be set to appoint a guardian and determine whether the person is partially or totally incapacitated.  Should you have questions about the guardianship process, feel free to call the Cramer Law Center at (904) 448-9978.


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