Determining Legal Incapacity in Florida

Once a person has reached the age of eighteen, they are legally considered to be an emancipated adult and capable of fending for themselves. At that point, they can go out into the world on their own and do whatever they want. However, if someone is concerned about another person’s ability to be self-sufficient, they can file a petition with the Florida courts to begin an investigation into a person’s alleged inability. This alleged inability is legally referred to as “incapacity” and can prevent someone from becoming fully emancipated.

Florida statute 744.3201 outlines how incapacity is determined. To begin this determination process, an adult person must draft a petition that includes the following information:

1. The name, age, and present address of the petitioner and his or her relationship to the alleged incapacitated person
2. The name, age, county of residence, and present address of the alleged incapacitated person
3. The primary language spoken by the alleged incapacitated person, if known
4. A statement indicating that the petitioner believes the alleged incapacitated person to be incapacitated
   1. The factual information on which the belief of incapacitation is based on
   2. The names and addresses of all individuals who have knowledge of such facts
5. The name and address of the alleged incapacitated person’s physician, if known
6. State which rights contained within §744.3215 that the alleged incapacitated person is incapable of exercising
7. State the names, relationships, and addresses of the alleged incapacitated person’s next of kin, specifying the dates of birth for those who are minors

Once this has been filed, a notice of filing will be delivered to the alleged incapacitated person, their attorney, and all next of kin identified in the petition. Then, as per Florida statute 744.331, the presiding judge will appoint a committee of three experts who will assess the alleged incapacities as described in the petition. The committee will meet with the alleged incapacitated individual and conduct a physical, mental health, and functional examination.

Once the examination is complete, the committee will return to the judge and submit a report with their findings. If the committee finds that no incapacities exist, the judge will dismiss the petition and the case ends right there.

However, if the committee does find that the examinee is incapacitated, the judge will draft a written order that specifically outlines the scope of his or her incapacities and what rights they can or cannot exercise. At this point, the court will begin the process of assigning a guardian to the incapacitated individual. The nature of this guardian will highly depend on the exact needs of the incapacitated person.

If you wish to file a petition to determine incapacity or have been the recipient of such a petition, you will need an experienced attorney who can properly represent your interests. Call Hendry & Parker, P.A., in downtown Dunedin, at (727) 205-5555 today for a free consultation serving Pinellas, Pasco & Hillsborough Counties.