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 help?

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

  • There is no incapacity per se. Florida laws are very protective of its citizens’ civil and legal rights. 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.
  • Your familial status does not entitle you to make decisions for someone else. The fact that you are related to someone does not automatically grant you the right to make decisions for a loved one. The only exception to this rule applies to parents of minor children. 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
  • You need to go through the process of declaration of incapacity, even if you have a power of attorney. Having a power of attorney is a good step. 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. 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 to close that sale. And you cannot invalidate the sale just because you have power of attorney.
  • 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.
  • 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.

Seek The Help Of An Elder Law Attorney Experienced In Guardianship Matters

The above are key points to learn for more clarity on the complicated process to regain control of a person that you suspect lacks capacity. If this is your situation, you need to immediately seek the help of an elder law attorney experienced in guardianship matters. If your goal is to control the decision-making authority of your loved one and prevent predators taking advantage of your loved one’s diminished capacity, your best course of action is to seek a judicial determination of incapacity. Contact Horacio Sosa, P.A. at 954-361-8966 or get started by sending at email. We are located in Davie and serve south Florida.

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