The Petitioner must be a competent adult who can attest as to why he or she believes the person may be incapacitated may initiate incapacity proceedings.
Who Has The Burden of Proof?
The Petitioner has the burden of proving the partial or total incapacity of the alleged incapacitated person by “clear and convincing evidence.” Florida case law provides that a finding of incapacity by clear and convincing evidence is not precluded by conflicting testimony of experts. Smith v. Smith, 917 So. 2d 400 (Fla. 5th DCA 2005).
The Incapacity Proceedings Procedure:
One of the below Petitions is filed. Any competent adult may file with the Court a Petition to determine another person’s incapacity. Once the Petition is filed, the Court will then appoint an examining committee consisting of three members. The examining committee will conduct an evaluation provide a report to the court.
1. File a Petition to Determine Incapacity:
This Petition demonstrates that the Ward needs a Guardian. Once this Petition is filed, the Court may appoint up to three (3) individuals to serve as members of an examining committee. One member shall be a psychiatrist or other physician.
The other members shall be medical professionals who can advise the Court in the context of an expert medical opinion. One of the three members of the examining committee should have expertise in the type of incapacity the Ward is suffering from and may not be the Ward’s attending or family physician. Each of the examining members then meets independently with the Ward to evaluate their abilities. Each member will then make a written report that they file with the Court.
The Court may appoint an attorney to represent the Allegedly Incapacitated Ward. Or the Ward may substitute their own attorney to represent them throughout the proceeding.
2. File a Petition for Appointment of a Guardian: This Petition asks the Court to appoint a Guardian to the ward.
3. File an Application for Appointment of a Guardian: This Petition asks the Court to appoint the Petitioner is Guardian of the Ward.
The Court holds a hearing. The Court will hold a hearing to review the reports of the examining committee. If the Court finds the Allegedly Incapacitated Person to be incapacitated, the Court must then determine if there is a less restrictive alternative to guardianship.
If necessary, the Court will appoint a Guardian. If the Court determines the Allegedly Incapacitated Person is incapacitated and there are no less restrictive alternatives, then the Court will appoint a Guardian and issue Letters of Guardianship. Depending on the determination of the Court, the Allegedly Incapacitated Person may require a Guardian of the person, a Guardian of the property, or a Guardian for both the person and the property.
Why choose the Horton Law Group?
At the Horton Law Group, we treat our clients like family. We are actively involved in the community, and we maintain professional relationships with our clients long after their cases are resolved. We are confident that you will be happy with your decision to hire the Horton Law Group to represent you during this difficult time. Please contact the Horton Law Group, P.A. at 561-299-0018 or email email@example.com to schedule a free 30-minute consultation with a qualified member from our team.