What is Incapacity?

Incapacity is when a person is either under the age of 18 or is unable to provide food, clothing, shelter, or unable to manage their business and financial affairs.  Guardianships are frequently created when difficulties present themselves in an individual’s life and his or her ability to deal with life’s affairs is hampered or non-existent.  A family member, or in some cases, a qualified individual can petition the court system to appoint someone to manage the incapacitated individual’s matters.

What is a Durable Power of Attorney?

A durable power of attorney provides the attorney in fact the ability to make legal and financial decisions for an incapacitated person.  The power of attorney typically becomes active when you sign it and is a delegation of that individual’s rights.  It does not take away a person’s own right to decide their own financial and legal issues.  The guardianship process essentially takes away some or all of someone’s rights whereas a durable power of attorney, delegates an individual’s rights, but does not take them away.

What Determines an Individual’s Capacity?

For guardianship purposes, a person who is considered incapacitated is one who is judicially determined to lack the ability to manage their property and to take those actions necessary actions to deal with their person.  In Florida, an examining committee meets with the claimed incapacitated individual.  A hearing is then conducted to determine the person’s capacity or lack thereof.  A guardianship is not created if there is a less restrictive alternative that is available.  Even where guardianship is necessary, Florida Statutes require that a guardian not be appointed where there is a less restrictive alternative to guardianship.

What is a Healthcare Surrogate?

Florida Law provides that individuals may designate a healthcare proxy who can make healthcare and medical treatment decisions for them.  Where an individual has not appointed a health care surrogate to make decisions while they are incapacitated, a guardian may be required.  This may also be the case where a person does not agree that they are incapacitated.  A classic example of this situation is where an individual has a stroke and is left without the ability to communicate.  In such a case, a guardian will likely be necessary to step in and make necessary healthcare decisions.  Once a person is incapacitated they are unable to execute a power of attorney, health care surrogate, will, or virtually any legal paper.  There are occasions where there may be several family members who disagree on a relative’s treatment and such a situation may require the appointment of a guardian.

What is a Pre-Need Guardian?

The designation of a pre-need guardian allows one to designate the person whom they desire to be appointed as their guardian in the event they become incapacitated.  When one becomes incapacitated, someone needs to be responsible for their care.  This designation allows one to select that individual or group of individuals.  A person may also designate other individuals whom he or she does not want to serve as his or her guardian.

About the author

Neil Weinreb is a Florida licensed attorney who has been practicing for more than 18 years in North Florida.  Mr. Weinreb works for the Law Office of David M. Goldman in Jacksonville, Florida.  Mr. Weinreb has worked as an adjunct professor teaching law to paralegal students at Jones College in Jacksonville, Florida.  You can contact Mr. Weinreb at the Law Office of David M. Goldman for a free initial consultation today to find out how having an experienced attorney on your side can help.  Call (904) 685-1200 today.





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