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What Do You Need to Do to Prove Incapacity & Guardianship in Orlando, Florida?

In an incapacity and guardianship hearing in the Orlando, Florida area, you must prove that the alleged incapacitated person is incapacitated. How do you do that?

First, prior to filing the guardianship petition, you should obtain s letter from the alleged incapacitated person’s treating physician stating that he/she is incapacitated. That shows you have a good faith belief the person is incapacitated, and it justifies the basis for filing the petition. In the petition, you allege the reasons why the person is incapacitated. You also list people who can substantiate those claims, such as the person’s doctor, accountant, neighbor, etc.

After you file your petition for incapacity and guardianship, the court appoints three examining committee members to examine the alleged incapacitated person. They are usually a doctor, a psychologist; and the third person is usually a mental health counselor, social worker, or nurse. They report to the court whether the alleged incapacitated person is incapacitated. They also specify which rights the alleged incapacitated person should retain, if any.

The court will appoint the alleged incapacitated person an attorney. However, the alleged incapacitated person has the right to hire his/her own attorney. 

The alleged incapacitated person may also hire his/her own experts to testify on his/her behalf as to his/her incapacity. The alleged incapacitated person also has a right to call witnesses on his/her behalf regarding his/her capacity. The alleged incapacitated person may also cross exam witnesses that testify against him/her. The alleged incapacitated person may also testify on his/her own behalf. However, if he/she does not testify, no inference can be drawn from him/her not testifying on his/her own behalf. 

The alleged incapacitated person can also argue that there are less restrictive alternatives to guardianship which can be a power of attorney and health care surrogate. 

The burden of proof to prove someone is incapacitated is to prove incapacity by clear and convincing evidence. There must be clear and convincing evidence that the alleged incapacitated person is incapacitated. 

At the incapacity and guardianship hearing, the court first determines if the person is incapacitated. Then the court decides if there are less restrictive alternatives; or if a guardian is required. Then the court decides who will be appointed as the incapacitated person’s guardian. 

The court then signs an order on incapacity, an order on guardianship, and letters of guardianship.  

If you have more questions regarding a Marital and Family Law matter in Orlando, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. 

This article is for informational purposes only, and it does not form an attorney-client privilege.