THE BAKER ACT AND DECLARING INCAPACITY

Estate planning involves more than just deciding who gets what after you die. It is about planning for the unexpected, whether that means death, a sudden accident that leaves you with permanent brain damage, the onset of a mental illness, or a developing addiction to alcohol and/or drugs. Our attorneys at Luis E. Barreto & Associates, P.A. are often asked by family members how incapacity is declared so that the loved one’s assets and health decisions can be properly managed.

Here in Florida, legislators have passed the Baker Act to address such situations. The state’sDepartment of Children and Families states that it is a mental health bill which gives mental health and medical professionals, circuit courts and law enforcement officers the power to conduct an exam on people who may cause harm to others or themselves, or who shows symptoms of a mental illness. Under the act, the person being examined does not need to give consent.

If the examination shows that the person is unable to care for himself/herself or make management decisions, the person may be involuntarily hospitalized for treatment. The examination generally includes looking at whether the person has the ability to make financial decisions, is aware and understands what is going on around him/her and can take care of daily needs such as eating, personal hygiene and daily chores. For example, people who have developed Alzheimer’s may not recognize family members or remember what they did just an hour before. This can leave them in a vulnerable condition and therefore, subject to financial abuse at the hands of those they trust. To learn more about loved ones and involuntary commitment, please visit our page.

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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.