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Three Things You Need to Know About Florida Incapacity Proceedings


In situations where someone becomes unable to care for themselves due to mental, physical or other issues, the state of Florida may need to appoint a legal guardian. If you’re involved in a possible guardianship situation, it is helpful to know the types of guardianship available in Florida and the correlating legal procedures.

There Are Two Different Types of Guardianships in Florida

Florida recognizes two kinds of legal guardianship, voluntary and involuntary. In a voluntary guardianship, the person for whom a guardian is appointed, also known as the ward, is a competent adult and requests the guardianship appointment. In an involuntary guardianship proceeding, a circuit court in Florida appoints a guardian for an incapacitated person.

In An Involuntary Guardianship, an Interested Person Must File a Petition

Before the court will declare a person incapacitated, a hearing before the judge and subsequent court order must take place. Before the hearing occurs, an interested person needs to file a Petition to Determine Incapacity. An interested person can be a caregiver, relative, neighbor or an attorney.

In the petition, the interested person will set forth the reasons why they believe the person in question needs to be determined incapacitated. After the interested person files the petition, the court will appoint the allegedly incapacitated person an attorney who is experienced in legal guardianship matters. The court will also assign a physician and two other health care professionals who will make up the examining committee.

An Examining Committee Determines Whether Someone is Incapacitated

The examining committee assigned by the court will conduct an investigation into the allegedly incapacitated person. Within 45 days, the committee will report to the judge whether or not they find the allegedly incapacitated person totally incapacitated, partially incapacitated or fully capable.

If the committee states that the person is partially or totally incapacitated, the judge will schedule a hearing at which witnesses, medical officials and any other interested parties will provide evidence as to whether or not the person is incapacitated. If the court decides that the person is incapacitated, the interested person must file a Petition for Appointment of Guardian and an Application for Appointment of a Guardian.

If the interested party is of sound mind and over 18 years old, the court will appoint the person who filed to be the guardian. If someone is contesting the guardianship, the court will look at all of the factors involved to determine a guardian. Florida recognizes the three following types of guardianships: guardian of the financial affairs (property), guardian of the person or plenary guardian of both aspects of the ward’s life.

If you or a loved one need assistance with an incapacity proceeding, our St. Petersburg, Florida guardianship attorneys are here to help. Joseph W. “Jay” Fleece, III is the head of our estate and trust litigation team and has over 38 years of experience litigating guardianship cases throughout Florida.

Our experienced attorneys have skillfully represented allegedly incapacitated persons, concerned loved ones, family members and any other interested parties. Contact the St. Petersburg guardianship litigation attorneys at Legacy Protection Lawyers, LLP today for help.




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