Petitions to Determine Capacity or Competency in Florida Guardianship Cases
We routinely handle cases requiring determinations of capacity pursuant to Florida Statute § 744.3201. Basically, before a guardian is appointed, a court (the judge) decides whether a guardian is needed in the first place. These “capacity” or “competency” proceedings basically consist of a panel of three experts evaluating the “Alleged Incapacitated Person” to decide if he or she is unable to make decisions on their own. The ultimate purpose of the evaluations is to help the judge decide whether the AIP’s legal rights should be removed and then delegated to a court-appointed guardian. These experts write “examining committee member reports” which are reviewed by the attorneys involved in the case, as well as by the judge. Other evidence, including medical records and witness testimony, is also presented for the judge’s consideration. The capacity determination is the first step toward the appointment of a guardian and is required for all adult guardianships (except a voluntary guardianship under Florida Statute §744.341).
Capacity/Competency Adjudication Hearings in Miami-Dade County and all over Florida
After considering evidence at the Fla. Stat. § 744.3371 hearing, the judge will enter an “Order Determining Capacity”, also known as a competency adjudication. This order describes the rights that should be removed from an AIP as well as the ones that should be delegated to a future guardian. The rights that can be removed from an AIP are extensive, but are listed as follows: to contract, to marry, to sue, to vote, to apply for government benefits, to travel, to determine residence, to manage property, to consent to medical treatment, to have a driver’s license, to be employed, to own a weapon, to decide social environment, and to apply for government benefits. Some of those rights can be delegated to a guardian for the guardian to “exercise” on behalf of the Ward. Others, like “marriage” and “employment”, obviously cannot be delegated.
Limited Guardianships and Plenary Guardianships in Miami-Dade County and all over Florida
There are two types of guardians. A “limited” guardian, as defined by Fla. Stat. §744.102(a), is guardian who has been appointed by the court to exercise specific legal rights of the Ward. For example, sometimes the judge will determine that the AIP has capacity to make decision about his or own social environment, but does not have capacity to manage his or her property. In these cases, a guardianship is “limited.” A “plenary” guardian, as defined by Fla. Stat. §744.102(b), is a person who has been appointed by the judge to exercise all delegable legal rights and powers of the Ward. In other words, the judge determined that the Ward is not competent to exercise any of his or her own legal rights.
Adult Guardianships in Miami-Dade County and all over Florida
Adult guardianships are primarily initiated in two very common, but very different situations and Bryan R. Ramos, PLLC has deep experience in both. The first situation occurs when elderly individuals are losing the ability to care for themselves due to age or some kind of medical diagnosis (Alzheimer’s, dementia, or some kind of mental infirmity). The second situation occurs in families with special needs children. These children have always required assistance from a parent or caregiver, especially with regard to medical treatment. If these children turn 18, HIPPA laws require that a guardianship is established so that the parents and/or caregivers can continue to attend medical visits, obtain medical information, and consent to medical treatment on the child’s behalf. In these situations, a determination of capacity can be initiated as soon as 6 months prior to the child’s eighteenth birthday. In both situations, the process in Miami-Dade County is similar to that of the rest of Florida: information is collected, petitions are filed, applications are submitted, fingerprints are collected, guardian courses are completed, and a determination is made by the presiding judge as to the appointment of a particular guardian.