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The finer points of guardianships: establishing incapacitation

If you're a regular visitor to our blog, then there is a strong possibility that you read our two-part series on guardianships -- one post, which appeared on our blog in late January and the follow-up post, which was written in early February. In the first of these posts we explained the general functioning of a guardianship, which is to allow an individual or institution the right to control a ward's property in the event that the ward becomes incapacitated.

What we didn't explain, however, is how the courts determine whether or not a person is incapacitated for the purposes of establishing a guardianship. In today's post, we'd like to revisit this important estate planning tool and see how it's determined that a person is in fact incapacitated.

When a person petitions the court to make a determination about incapacitation, they must include documentation they think supports their claim. The documentation must be able to convince the court that the person "lack[s] the capacity to manage at least some of his or her property or to meet at least some of the essential health and safety requirements of the person."

When presented with this information, the court will appoint a committee consisting of three members that will use a physical and mental health examination, and a functional assessment in order to determine whether or not the claims made in the petition are justified. In order to protect the rights of the potential ward, the court will appoint an attorney, though a ward may do so for themselves.

As you can see, establishing incapacitation is not as simple as one might imagine. The process contains a high level of scrutiny and is handled with great care. This is because the court is aware of what's at stake, which is why the process is designed to protect a ward's rights at every step.

Source: The Florida Bar, "How Is a Person Determined to Be Incapacitated?" Accessed May 15, 2015

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