4 Factors Florida Courts Consider When Determining Competency

Estate planning is a subject many people don’t seem to think about until it’s almost too late. If you have an elderly loved one who needs to get their affairs in order, it could be more difficult than you imagine. Deciding who receives our assets once we pass on might be easy when we are young and have full mental capacity, but what about when we get older? What about when a loved one is diagnosed with a neurological disease like Alzheimer’s?

Due to the financial and emotional ramifications of making such decisions, it’s critical that a person be of sound mind when making such plans. In Florida, there are specific questions used by the court system to determine one’s mental competency as it relates to estate planning.

Possessing Legal Capacity

One of the primary questions taken into account is the person’s ability to make decisions in a legal capacity. In the context of estate planning, it’s asking if the individual actually understands the transactional nature of the choices they are making. Do they truly acknowledge the effects it will have if they leave their home and assets for one person over another?

Assessing Diminished Capacity

Due to certain psychological conditions or illnesses, an elderly individual might be able to make some decisions some of the time. They can grasp the ramifications of their actions, but may not always have the forethought to act in their own best interest. This type of competency is generalized as diminished capacity, and needs careful attention. Legal professionals must do their best to recognize if a person is grasping the weight of their decisions, particularly when it comes to drafting their will.

The Legal Capacity Questionnaire

Hailed as the most useful tool in the legal system for determining competency, a heavily used questionnaire might be something the court system calls upon. Balancing questions relating to general information, true/false questions, and an opportunity to provide open-ended solutions, a scoring system will typically determine how competent the individual is and make a recommendation to proceed or to seek another course of action.

Utilizing Guardianship

If it has become clear that the individual in question is not competent enough to proceed with planning their estate, an adult guardian will be assigned. This person will act on behalf of the impaired individual only in extreme cases where no other alternative is available. Not only could the guardian make decisions pertaining to the person’s will, but might also become their health care proxy if needed.

If you or a loved one have questions regarding mental competency as it relates to estate planning, please contact The Law Offices of Luis E. Barreto & Associates. We can assist you in navigating through these important decisions.

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Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.