Under Florida statute 744.102(12) an incapacitated 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.
(a) To "manage property" means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
(b) To "meet essential requirements for health or safety" means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur."
Adult guardianship begins with a determination concerning whether a person is fully or partially incapacitated. The reason for this is that if the person has capacity, then they can do what they want to do much to the chagrin of their children sometimes.
The guardianship process generally takes the following steps:
- Filing a petition with the circuit court to determine whether the alleged incapacitated person lacks capacity to manage themselves or their property.
- The court appoints a committee of three individuals to exam the alleged incapacitated person and the three committee members then file a report with the court. If the reports indicate that the person lacks capacity, then the court must decide whether there is a less restrictive alternative to a guardianship. Many times the reports are not consistent. This requires an evidentiary hearing where the court reviews the evidence and makes a ruling on whether the AIP has capacity or is partially or completely incapacitated.
- If there is a less restrictive alternative (such as a durable power of attorney), then the court will refuse to appoint a guardian.
- If there is no less restrictive alternative to appointing a guardian, then the court will appoint a guardian, but many times who the guardian should be is a contested issue requiring an evidentiary hearing.
- Once the court appoints a guardian, then the guardian inventories the ward's (the ward is the name of the person who has been judged incapacitated) property and files a care plan with the court. Annually the guardian files an accounting with the court as well as a care plan. This will continue until the ward dies or regains capacity.