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Petition to Determine Incapacity

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Petition to Determine Incapacity

Miami Guardianship Attorney

There are different reasons why someone might be considered incapacitated and unable to manage their affairs. Once such example involves individuals with Alzheimer's disease, which is an irreversible, progressive brain disease that slowly destroys memory and cognitive function to the point that the person has difficulty carrying out the simplest of tasks.

Guardianship can help a person with mental and/or physical disabilities by appointing a surrogate decision-maker to manage the person's affairs. At critical stages of certain diseases, the individual may have difficulties understanding, reading, writing and speaking. In these circumstances it becomes virtually impossible for the person to manage property, to make the appropriate residential choices, and provide informed consent for medical treatment.

In Florida, the court can appoint an individual or an organization to act on behalf of a person who has been judicially determined incapable of managing his or her own affairs. In this case the incapacitated person is referred to as the ward and the person who is appointed to manage the ward's affairs is known as the guardian.

The guardian is responsible for managing the ward's assets, and plans for the ward's health care and personal wellbeing. There are three main types of guardians including:

  • Family guardians
  • Professional guardians who receive compensation for their services, and
  • Public guardians appointed by the Statewide Public Guardianship Office to serve indigent, incapacitated persons who don't have family or friends available to act as their guardian

Filing the Petition

There are numerous rights that an incapacitated person may be declared unable to exercise such as the right to marry, contract, determine his or her residency, consent to medical treatment, personally apply for government benefits, the gifting or disposing of property, travel, the right to drive, seek or retain employment, and sue or defend lawsuits.

If the court determines that the alleged person is incapacitated, then the court must appoint a guardian. If the person is partially incapacitated then they will be appointed a limited guardian, but if they are completely incapacitated, then a plenary (full) guardian will be appointed.

Florida Probate Rule 5.030 requires that every guardian be represented by an attorney admitted to practice in Florida. If you wish to petition the court for guardianship, you will need to be represented by a Miami guardianship lawyer.

Contact My Coral Gables Firm Today

I urge you to contact me for the legal representation you need. With 30 years of experience representing clients throughout the Miami-Dade courts, I can assist you with filing a petition to determine incapacity.

Frequently Asked Questions

Do wills have limitations? Yes, wills do have limitations. This is why it is important to create an entire estate plan, and keep every document up-to-date. Things such as financial accounts and insurance policies have more power than a will. If your ex-spouse is named to receive your assets in a financial account or insurance policy after you die, they will receive said money, despite what your will states.
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