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Determining Adult Mental Capacity In An Elder Guardianship Proceeding


Melissa is worried about her father Ken. He was recently diagnosed with Alzheimer’s Disease and since then has acted erratically. Last week he drove to the grocery store, then got disoriented, could not find the car, and walked halfway home until he collapsed. He is also becoming increasingly belligerent and accidentally spent a couple thousand dollars on something he saw on a commercial. Melissa is very concerned for her dad’s safety but is not ready to talk about assisted living yet. What are her options?

What is an Adult Guardian in Florida? 

In Florida, there are two processes for appointing a guardian of a person. A guardian can be appointed to a child (or ward) by the state or a relative can petition to become a guardian. In addition, a guardian can be appointed for an elderly adult who is determined to be mentally incapacitated. To prove mental incapacity, the petitioner seeking guardianship must establish that the loved one is no longer mentally competent to manage their finances, household tasks or basic needs. When the loved one denies the need for a guardian, the petitioner files an involuntary guardianship petition. When the loved one agrees that a guardianship is necessary and in their best interest, the petitioner files a voluntary petition. A court will not grant a guardianship until all other less restrictive means are exhausted such as a financial or medical power of attorney or trust.

Navigating a Guardianship Proceeding 

To seek guardianship, the person requesting to be guardian must file a petition with the court of jurisdiction. Petitioners are highly recommended to seek the advice and guidance of an elder law attorney when filing because elder law is complicated. A three person examining committee is appointed to evaluate whether or not the potential ward is in fact incapacitated and requires a guardian. The committee is composed of at least one medical doctor who will report their medical findings back to the presiding judge. Then the judge conducts an adjudicatory hearing where he or she will appoint (or not appoint) the guardian. The process takes about three months from start to finish. 

Contact the Tampa Elder Law Attorneys at Strategic Law Group, L.C. 

It is never easy to face the fact that your parents are getting older and require more care. It is even more difficult when a parent is diagnosed with dementia. However it is important that you think about their health and safety even if they deny your offer for help. You or a loved one might need to apply for guardianship. Our Tampa estate planning attorneys at Strategic Counsel Law Group understand the process and will honor and respect your wishes. Call us today to schedule a consultation.



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