Skip to main content

Exit WCAG Theme

Switch to Non-ADA Website

Accessibility Options

Select Text Sizes

Select Text Color

Website Accessibility Information Close Options
Close Menu
Legacy Protection Lawyers St. Petersburg Estate Planning, Probate & Trust Lawyer
  • SCHEDULE A CONSULTATION TODAY!

How Do Florida Courts Determine Mental Incapacity?

EstPlan23

The terms “capacity” and “incapacity” are often used in estate planning documents and laws, but many people do not understand the legal significance of these two words.  Depending the context, these terms can have vastly different meanings.

What is Testamentary Capacity?

One of the requirements to execute a valid Will is to be over the age of 18 and have testamentary capacity. In other words, testamentary capacity means that a person is capable of understanding the significance and effect of executing a Will and the extent of their property.

Thus, a person who suffers from dementia or another mental illness may not have the testamentary capacity, though there may be exceptions. Even if a Will is created, someone could challenge the validity of the document by arguing that the Testator did not have the testamentary capacity to execute it.

Power of Attorney vs. Guardianship and Mental Incapacity

There are two types of legal proceedings that deal with mental incapacity in estate planning: Power of Attorney and Guardianship.

  1. Power of Attorney. When someone has the mental capacity to execute the Power of Attorney, this document allows the designated person to make decisions on behalf of the Principal if he/she becomes incapacitated.  However, please note that an agent under a Power of Attorney would have the ability to make decisions on behalf of the Principal even while the Principal has capacity.
  2. Guardianship. However, when someone no longer has the mental capacity to execute a valid Power of Attorney, the court may appoint a legal guardian to make decisions on behalf of an incapacitated individual and manage their personal and financial affairs in the absence of a valid Power of Attorney.

How Do Florida Courts Determine Incapacity Through a Guardianship Proceeding?

Fla. Stat. § 744.102 defines an “incapacitated person” as an individual who the court determines to lack the capacity to manage their property or meet the required health and safety standards.

Florida courts consider a variety of factors when determining incapacity. The determination is made by a court-appointed examining committee, which meets with the person and reviews their medical records.

After meeting the person, the committee prepares a detailed report and submits it to the court. The report describes the person’s capacity and explains how the committee reached the decision.

The committee evaluates the following factors to determine incapacity:

  • Is the person capable of making informed decisions regarding their right to contract?
  • Does the person have the capacity to manage their property or distribute assets?
  • Is the person capable of making informed decisions regarding their right to marry, vote, have a driver’s license and drive a motor vehicle?

The committee will consider these and review other factors to make a finding of incapacity. However, the person who has been deemed incapacitated has a right to challenge any evidence of their alleged incapacity.

If the court confirms that the person is incapacitated, it will appoint a legal guardian. The process can be quite time-consuming, public, and complicated, which is why it is best to avoid it altogether by executing a Durable Power of Attorney.

Speak with our attorneys at Legacy Protection Lawyers, LLP, to help you understand your options and execute a Power of Attorney. Contact our lawyers by calling 727-471-5868.

Facebook Twitter LinkedIn

By submitting this form I acknowledge that form submissions via this website do not create an attorney-client relationship, and any information I send is not protected by attorney-client privilege.

Skip footer and go back to main navigation