Being incapacitated indicates that someone is not able to care for themselves. Florida law does not allow someone incapacitated to create, revoke, or update an existing will, trust, or beneficiary designation. For the incapacitated person’s loved ones and heirs, changes to estate planning once they can no longer care for themselves are emotionally and financially challenging.
However, it is also difficult to contest a will because the person who wrote it, also known as the testator, was incapacitated. You must prove that the individual’s mental capacity had been compromised before they changed their estate plans.
What Does It Mean When a Person Is Incapacitated?
Florida law defines incapacity as anyone who is a minor under 18 years old or had a court declare they could not manage property or take care of their own health and safety.
However, no adult is legally incapacitated until a court determines their status. While many people cannot practically care for themselves, such as those in a coma, legally, this has no impact. Of course, someone in a coma also cannot create a will.
Incapacitation means you cannot make financial or health decisions for yourself. If you are declared incapacitated, a guardian or representative will make difficult choices on your behalf, with a duty to act in your best interests.
The guardian will be appointed by the court and can take care of tasks, such as:
- Paying bills for the incapacitated person.
- Managing the incapacitated person’s finances and investments.
- Selling a business or house on behalf of the incapacitated person.
- Making medical decisions such as whether to have surgery or when to enter an assisted-living facility.
The guardian will have a fiduciary duty towards the incapacitated person.
Minors under the age of 18 cannot receive or manage property in their own name, as they are legally incapacitated. This also means they cannot create their own last will, unless they have been legally emancipated from their parents or guardians.
What Determines if Someone Is Incapacitated?
If you have a loved one you believe cannot legally make informed decisions, you may need to seek to have them legally declared incapacitated.
Florida courts handle determination whether someone has become incapacitated. As noted above, some cases are straightforward, such as people in comas or with complete loss of brain function. However, other instances are more complicated and subjective, like a person suffering from dementia.
While a dementia patient may seem fully competent for one hour or one day, the next, they may be incapable of caring for themselves. Because of the complexities involved in determining when someone no longer has the legal capacity to handle their own affair, some courts have set up special committees.
Especially in larger Florida counties, these committees are assigned cases and then make individual rulings after reviewing evidence. A special committee typically consists of subject matter experts, including doctors and lawyers, who have significant experience handling incapacitation and understanding the nuances involved in declaring someone legally incapacitated.
How Do You Declare Someone Legally Incapacitated?
To prove that someone is legally incapacitated, you need to petition a Florida court. Florida law allows both voluntary and involuntary guardianships. But you can only create a voluntary guardianship while the person has the capacity to mentally manage some of their affairs.
To secure an involuntary guardianship, you will need to submit a declaration that the person is legally incapacitated. You need to prove that your loved one cannot care for themselves and that there is no less restrictive way of handling their affairs available.
Sometimes, this process can be resisted by the person you are seeking to declare incapacitated. The court needs to review medical evidence and possibly take testimony.
Other issues that may be reviewed are who should be appointed guardian and how much power the guardian should have over the incapacitated person’s affairs.
Seeking to have a loved one declared legally incapacitated may be a stressful and challenging journey but can have considerable benefits. Preventing your loved one from harming their financial or medical status due to their inability to understand and process information can be more valuable than the emotional tax you will have to pay.
Before you attempt to have a loved one incapacitated, you should consult with an experienced incapacitation lawyer to discuss your options.
Have questions? We’re happy to discuss.
Call (786) 761-8333 or email [email protected]
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About RMO Lawyers, LLP
About RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (786) 761-8333 or visit: https://rmolawyers.com