Contested Guardianships & Determining Incapacity

When someone is believed to be incapacitated, others may file for guardianship over that person. Ultimately, their goal is to receive the legal authority to make decisions on their behalf. There are numerous reasons why someone could contest a guardianship:

  • The family members cannot agree as to who will become the guardian.
  • The person believes they are not incapacitated and is capable of making their own decisions.
  • Someone believes there is a better, more viable option—or generally disagrees with the need for a guardian.

After reading through those scenarios, you may be under the impression that a person who needs a guardian will be losing their rights—and they will. However, it is also important to highlight that there are many valid reasons to become someone’s guardian. When someone cannot make decisions for themselves, they are at risk of being exploited, manipulated, or coerced into doing things that may not be in their best interest. Guardians seek to be their line of defense. 

The First Step

Before anyone can become another’s guardian, incapacity has to be determined. If the person in question is not incapacitated, there is no need for a guardian. In Florida, the petition gets filed through a probate court, and the person being evaluated will be appointed legal counsel—if they don’t have an attorney already.

Within 5 days of the petition, the court appoints a three-person examination committee, and at least one of those people must be a psychologist or physician. Within 15 days of being assigned to the examination team, each member conducts:

  • Physical exam
  • Mental health examination 
  • Functional assessment 

Though an incapacitated person still has rights, the examination team determines whether the person can comprehend and utilize the freedoms we usually possess. For example:

  • Buy & sell property 
  • Manage finances
  • Make medical decisions on their own behalf
  • To vote, marry, or sign a contract

Again, because of the case’s significance, anyone who is said to be incapacitated will have legal representation. Many of the aforementioned things can be challenged by both sides After the court receives the report from the committee members (your attorney will explain the timelines for which this is expected to happen), there will be a hearing to determine whether an order should (or should not) be issued for guardianship. 

Luis E. Barreto & Associates

Guardianship is a serious matter. Incapacitated people will lose some of their rights to keep them safe and protected. Contact the client-oriented Florida probate and trust litigation law firm of Luis E. Barreto & Associates to schedule a free initial consultation for further information about guardianships or contested guardianships. 

Luis E. Barreto