The Florida Senate

744.331  Procedures to determine incapacity.--

(1)  NOTICE OF PETITION TO DETERMINE INCAPACITY.--Notice of the filing of a petition to determine incapacity and a petition for the appointment of a guardian if any and copies of the petitions must be served on and read to the alleged incapacitated person. The notice and copies of the petitions must also be given to the attorney for the alleged incapacitated person, and served upon all next of kin identified in the petition. The notice must state the time and place of the hearing to inquire into the capacity of the alleged incapacitated person and that an attorney has been appointed to represent the person and that, if she or he is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on her or his behalf.

(2)  ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.--

(a)  The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.

(b)  Any attorney representing an alleged incapacitated person may not serve as guardian of the alleged incapacitated person or as counsel for the guardian of the alleged incapacitated person or the petitioner.

(3)  EXAMINING COMMITTEE.--

(a)  Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court's discretion, advise the court in the form of an expert opinion. One of three members of the committee must have knowledge of the type of incapacity alleged in the petition. Unless good cause is shown, the attending or family physician may not be appointed to the committee. If the attending or family physician is available for consultation, the committee must consult with the physician. Members of the examining committee may not be related to or associated with one another or with the petitioner or the person alleged to be totally or partially incapacitated. A member may not be employed by any private or governmental agency that has custody of, or furnishes, services or subsidies, directly or indirectly, to the person or the family of the person alleged to be incapacitated or for whom a guardianship is sought. A petitioner may not serve as a member of the examining committee. Members of the examining committee must be able to communicate, either directly or through an interpreter, in the language that the alleged incapacitated person speaks or to communicate in a medium understandable to the alleged incapacitated person if she or he is able to communicate.

(b)  Each member of the examining committee shall examine the person. The examining committee shall determine the alleged incapacitated person's ability to exercise those rights specified in s. 744.3215 In addition to the examination, the examining committee shall have access to, and may consider, previous examinations of the person, including, but not limited to, habilitation plans, school records, and psychological and psychosocial reports voluntarily offered for use by the alleged incapacitated person. The examining committee shall submit a report within 15 days after appointment.

(c)  The examination of the alleged incapacitated person must include a comprehensive examination, a report of which shall be filed by the examining committee as part of its written report. The comprehensive examination report should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision. The comprehensive examination must include, if indicated:

1.  A physical examination;

2.  A mental health examination; and

3.  A functional assessment.

If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report must explain the reasons for its omission.

(d)  The committee's written report must include:

1.  To the extent possible, a diagnosis, prognosis, and recommended course of treatment.

2.  An evaluation of the alleged incapacitated person's ability to retain her or his rights, including, without limitation, the rights to marry; vote; contract; manage or dispose of property; have a driver's license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.

3.  The results of the comprehensive examination and the committee members' assessment of information provided by the attending or family physician, if any.

4.  A description of any matters with respect to which the person lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the determination that the person lacks that capacity.

5.  The signature of each member of the committee.

(e)  A copy of the report must be served on the petitioner and on the attorney for the alleged incapacitated person within 3 days after the report is filed and at least 5 days before the hearing on the petition.

(4)  DISMISSAL OF PETITION.--If the examining committee concludes that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.

(5)  ADJUDICATORY HEARING.--

(a)  Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard. The date for the adjudicatory hearing must be set no more than 14 days after the filing of the report of the examining committee, unless good cause is shown. The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.

(b)  The alleged incapacitated person must be present at the adjudicatory hearing, unless waived by the alleged incapacitated person or the person's attorney or unless good cause can be shown for her or his absence. Determination of good cause rests in the sound discretion of the court.

(c)  In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.

(6)  ORDER DETERMINING INCAPACITY.--If, after making findings of fact on the basis of clear and convincing evidence, the court finds that a person is incapacitated with respect to the exercise of a particular right, or all rights, the court shall enter a written order determining such incapacity. A person is determined to be incapacitated only with respect to those rights specified in the order.

(a)  The court shall make the following findings:

1.  The exact nature and scope of the person's incapacities;

2.  The exact areas in which the person lacks capacity to make informed decisions about care and treatment services or to meet the essential requirements for her or his physical or mental health or safety;

3.  The specific legal disabilities to which the person is subject; and

4.  The specific rights that the person is incapable of exercising.

(b)  In any order declaring a person incapacitated the court must find that alternatives to guardianship were considered and that no alternative to guardianship will sufficiently address the problems of the ward.

(c)  In determining that a person is totally incapacitated, the order must contain findings of fact demonstrating that the individual is totally without capacity to care for herself or himself or her or his property.

(d)  An order adjudicating a person to be incapacitated constitutes proof of such incapacity until further order of the court.

(e)  After the order determining that the person is incapacitated has been filed with the clerk, it must be served on the incapacitated person. The person is deemed incapacitated only to the extent of the findings of the court. The filing of the order is notice of the incapacity. An incapacitated person retains all rights not specifically removed by the court.

(f)  When an order is entered which determines that a person is incapable of exercising delegable rights, a guardian must be appointed to exercise those rights.

(7)  FEES.--

(a)  The examining committee and any attorney appointed under subsection (2) are entitled to reasonable fees to be determined by the court.

(b)  The fees awarded under paragraph (a) shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state. The state shall have a creditor's claim against the guardianship property for any amounts paid under this section. The state may file its claim within 90 days after the entry of an order awarding attorney ad litem fees. If the state does not file its claim within the 90-day period, the state is thereafter barred from asserting the claim. Upon petition by the state for payment of the claim, the court shall enter an order authorizing immediate payment out of the property of the ward. The state shall keep a record of such payments.

(c)  If the petition is dismissed, costs of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith.

History.--ss. 9, 26, ch. 75-222; s. 4, ch. 77-328; s. 1, ch. 78-342; s. 6, ch. 79-221; s. 35, ch. 89-96; s. 20, ch. 90-271; s. 4, ch. 91-303; s. 5, ch. 91-306; s. 7, ch. 96-354; s. 1783, ch. 97-102; s. 76, ch. 2004-265.