It's hard to imagine a tougher situation than that of a family member or concerned friend feeling that an elderly person is no longer competent to look after herself. Doing nothing leaves the person in harm's way, while acting is likely to arouse the ill will of the elderly individual. But, remember that nobody is declared incompetent without a court order, so a judge makes the ultimate call. If you live in Florida, the legal process to have an adult deemed incompetent is set out in Florida statute 744.331.
Declaration of Incapacity/Incompetence
In the United States, everyone is presumed to be competent to handle their own finances and other affairs, and this is usually true. However, sometimes individuals lose their mental capacity as they age. That's why every state has laws setting out the appropriate procedure to address a person's competency before a court. If a person is deemed mentally incompetent by a court, another individual is appointed her guardian and given authority to make decisions on her behalf.
The procedures regarding declarations of incapacity vary among the states, but usually require an action before the probate court. Often, petitions for declarations of incompetency are brought by family members who also seek to be appointed the guardian of the person. Obviously, it is essential that the elderly person have an attorney representing her interests and be given the opportunity to rebut any evidence presented.
Various levels of safeguards are built into state laws, including the right of the elderly person to have counsel, the requirement that a neutral doctor perform competency testing, and the court's discretion in appointing a guardian.
Florida's Laws on Mental Incapacity: Petition and Notice
Florida statute 744.331 outlines the procedure to have an adult deemed incapacitated in Florida. The statute requires that the family member or other concerned party file a petition to determine incapacity with a Florida court. That person must also file a petition for appointment of guardianship.
Whoever brings these petitions must have them personally handed to the person claimed to be incapacitated. The court appoints an attorney for that person who then reads the petitions to the alleged incapacitated person. It is this attorney's responsibility to look after the best interests of that person. In Florida, the court-appointed attorney is chosen from the court’s attorney registry or from the office of criminal conflict and civil regional counsel. The person charged with being incapacitated can instead choose to use his personal attorney. The attorney must file a report with the court setting out his position and facts supporting his claims.
Florida's Laws on Mental Incapacity: Examining Committee
The court also appoints three people to form a committee to examine the elderly person. These people may come with different backgrounds ranging from psychologists to nurse practitioners to social workers. They meet with and examine the person claimed to be incapacitated, then file a report with the court.
Under Florida statute 744.331(f), the report must include a physical exam as well as a mental health exam and a functional assessment. Specifically, the statute requires each report to contain:
- A diagnosis of any health issues and a recommended course of treatment.
- An evaluation of the person's ability to make decisions about her property, her home and her medical treatment.
- The results of the comprehensive examination.
- A description of any matters in which the person lacks capacity, the extent of that incapacity, and the factual basis for that determination.
- The names of all persons present during the time the committee member conducted an examination, noting any questions that those people addressed.
If two or more members of the examining committee find that the person is competent, the petitions are dismissed. Otherwise, the court schedules an adjudicatory hearing on the petition to determine incapacity.
The court hears all relevant evidence at the hearing. The partial or total incapacity of the person must be established by clear and convincing evidence. Under the statute, the court must include as findings:
- The exact nature and scope of the person’s incapacity.
- The exact areas in which the person lacks capacity to make informed decisions about care and treatment services or to meet the essential requirements for her or his physical or mental health or safety.
- The specific legal disabilities to which the person is subject.
- The specific rights that the person is incapable of exercising.
If the person is found incompetent, the court appoints a guardian to handle her affairs.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.