How Do You Determine Mental Incapacity When Setting Guardianship?

Guardianship is a court process that enables a person to assume the decision-making powers over another person who is unable to manage their own affairs. This is a key process for people looking to care for a loved one due to their old age, declining health, or other medical condition. Setting up guardianship first requires a court to determine a person’s mental incapacity. We explain this process below and provide more information on who can serve as a guardian in Florida.

The Process for Establishing Mental Incapacity in a Guardianship Case

Determining mental incapacity when setting guardianship begins with filing a petition in Florida circuit court and completion of the steps outlined in Statute 744.331. After filing, the court will then appoint an attorney to represent the potential ward in the guardianship case before it goes to an examining committee for review. Mental incapacitation can be difficult to determine, which is why the examining committee consists of three medical professionals with at least one of them being a psychiatrist or physician.

Each member of the committee will evaluate the person with a physical exam, mental exam, and a functional assessment, and then provide an opinion on their mental capacity. The evaluations will also specify a person’s capacity to exercise their rights regarding common aspects of one’s social environment, including the following:

• Marrying
• Voting
• Entering a contract
• Managing property
• Obtaining a driver’s license
• Choosing their residence
• Consenting to medical treatment

The committee members will each issue a report of their findings and submit it to the court for final review. A judge will then issue an order that legally establishes the areas where a person lacks the mental capacity to make informed decisions about their care. A person seeking guardianship appointment can use this order in their petition to obtain authority over the incapacitated person’s decision-making.

Who Can Serve as Guardian for a Mentally Incapacitated Person?

Florida allows courts to appoint any resident over the age of 18 to serve as a guardian. However, non-resident guardians must generally have a family relation to the ward, such as a child, spouse, or sibling. In cases where no family member wishes to serve as guardian, the court may also consider appointment of an entity. For example, a health care provider, religious organization, assisted living home, or another facility could assume guardianship powers on a person’s behalf. Florida does limit some individuals from ever serving as a guardian, including convicted felons, other incapacitated individuals, or someone with a conflict of interest.

Call a Lawyer Today to Determine Mental Incapacity in Naming a Guardian

Determining mental incapacity is an essential first step for establishing guardianship over a loved one. Our guardianship lawyers at The Florida Probate & Family Law Firm are here to help you navigate this process as fast and efficiently as possible. Contact our office today to schedule a free case evaluation.