You probably came across this situation before.  An adult family member or a friend is not acting normally.  He or she is forgetting things or getting lost or flees the house and is nowhere to be found.  He or she is making impulsive purchases and spending money irrationally.  How can you stop this behavior and regain control?

Here are the 5 things you need to know when you suspect that someone is mentally incapacitated.

1.           There is no incapacity per se.  Florida law presumes that you have capacity until a judge determines otherwise.   Whether you are in a coma, have been diagnosed with advanced dementia, or are incapable of expressing your wishes, you are still presumed to have capacity.  Per Fla. Stat. 744.102 (12) an “’[i]ncapacitated person’ means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.” 

2.           Only a judge can declare someone incapacitated.  The judge is the only person that can determine that a person lacks the capacity to manage his or her property and make decisions about his or her health or safety.  A letter from a doctor, hospital, psychologist, or psychiatrist does not have any legal effect other than serving as evidence in a court proceeding that a person may be incapacitated.    

The philosophy behind this reasoning comes from the intention of the legislature.  Florida laws are very protective of its citizens’ civil and legal rights.  Fla. Stat. 744.1012 states that “[a]djudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary.” 

3.           Your familial status does not entitle you to make decisions for someone else.  “Why do I need to go through the process of declaring someone incapacitated?? I am his or her [husband] [wife] [son] [daughter] and I can make decisions and sign documents for him/her!”  Regardless of your familial status, you may still need to use the courts to declare a person incapacitated and appoint a guardian.  The fact that you are related to someone does not automatically grant you rights to make decision for a loved one. 

The only exception to this rule applies to parents of minor children. 

4.           A Durable Power of Attorney does not mean that you can prevent someone from acting inappropriately

Having a power of attorney is a good step.  However, remember that your loved one is still presumed to have capacity!  Even if your loved one’s capacity is questionable, he or she can still make decisions, make purchases, seek treatment, determine residence, etc., despite the existence of the power of attorney.  A durable power of attorney can be revoked by the principal.  So, someone can call your loved one with diminished capacity, get his or her credit card, and convince him or her to purchase a $3,000 vacation package, and that transaction is valid!  The travel agency didn’t have to ask you, the agent under a power of attorney, to close that sale.  And you cannot invalidate the sale just because you have a power of attorney.

Another issue that we, as attorneys, come across frequently is that the powers of attorney are poorly drafted.  In most cases, these documents are not enough to resolve issues of incapacity.

5.           In the Process of Determination of Incapacity the court will appoint an attorney to represent the alleged incapacitated person

The Determination of Incapacity is the process where a family member or another interested person is petitioning the court to remove the decision-making capacity from someone.  Your first step in regaining control then is to go through this process so a judge can tell the alleged incapacitated person:  “From this point forward your rights to contract, manage money, seek medical treatment, determine residence, etc. are removed and delegated to another person called a Guardian.”

The process of declaration of incapacity starts with a petition for determination of incapacity prepared by an attorney.  In the petition a family member, represented by an attorney, alleges that someone is incapacitated and states the reason why the family member believes so. “I believe my father is incapacitated because he was diagnosed with dementia.” Or, “I believe my mom is incapacitated because she spends money irrationally.”  “People are taking advantage of my parents.  I want to prevent that.”  “I want to force my parent to go to a nursing home because I am afraid he will be get lost.”

This petition is filed with the court and the court immediately takes important actions.  First, the court appoints an attorney for the alleged incapacitated person.  Hint:  This attorney is not the same attorney you hired to prepare the petition.  This attorney represents the alleged incapacitated person only.

Second, the court appoints an examining committee composed of three people.  Typically, the members of this examining committee are a mental health professional (such as a psychiatrist or psychologist), a physician, and a social worker. 

The court-appointed attorney and the 3 examining committee members must visit the alleged incapacitated person in person and file their reports to the court.

The court then will set a hearing date to hear the evidence and the examining committee’s conclusion.  If from the evidence presented the court is satisfied by clear and convincing evidence that the alleged incapacitated person lacks capacity, the court will declare that person as incapacitated.   As such, the court will remove rights from the incapacitated person and delegate those rights to a guardian.

Some rights will be removed but cannot be delegated.  The rights that can be removed but not delegated to a guardian are:

(a) The right to marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.

(b) The right to vote.

(c) The right to personally apply for government benefits.

(d) The right to have a driver license.

(e) The right to travel.

(f) The right to seek or retain employment.

Other rights will be removed and delegated to the guardian.  The rights that may be removed from a person and which may be delegated to the guardian are:

(a) The right to contract.

(b)  The right to sue and defend lawsuits.

(c)  The right to apply for government benefits.

(d)  The right to manage property or to make any gift or disposition of property.

(e)  The right to determine his or her residence.

(f)  The right to consent to medical and mental health treatment.

(g)  The right to make decisions about his or her social environment or other social aspects of his or her life.

Depending on the evidence, sometimes a person can be found to lack capacity in certain areas but capable in others.  For example, a person may lack the capacity to contract only but still have the capacity to work or travel.  In these cases, the judge makes a determination of which rights are removed and which rights are kept and appoints a Limited Guardian of the Person or Property.     

I hope this tutorial gives more clarity on why you need to go through this complicated process to regain control of a person that you suspect lacks capacity.  Remember these 5 key points: 

  1. There is no incapacity per se.  Even if someone is in a coma, diagnosed with Alzheimer’s, or bedridden, does not, because of such conditions, renders a person incapacitated.
  1. A judge, after following due process, is the only person who can determine whether a person is incapacitated or not.   Doctors’ letters are only evidence that can be presented in court.
  1. The fact that you are related by blood to someone does not entitled you to make decisions for an incapacitated person.
  1. If you want to prevent that the alleged incapacitated person do something that you think is inappropriate you need to go through the process of declaration of incapacity, even if you have a power of attorney.
  1. When hiring an attorney to represent you, you need to understand that the court will appoint an attorney to represent the alleged incapacitated person.  This is what due process is all about.


BONUS:  You need to immediately seek the help of an elder law attorney experienced in guardianship matters.  If your goal is control the decision-making authority of your loved one and prevent that predators take advantage of your loved one’s diminished capacity, your best course of action is to seek a Judicial Determination of Incapacity.