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Mental Incapacity, Guardianship, and Divorce in Florida

A party may seek a divorce on the grounds that his or her spouse is mentally incapacitated pursuant to Florida Statute 61.052(1)(b). However, the party alleged to be mentally incapacitated, must have been adjudicated by a judge to be incapacitated pursuant to Florida Statute 744.331. Also, pursuant to Florida Statute 61.052(1)(b) he or she must have been incapacitated for a period of at least three years prior to the commencement of the dissolution of marriage proceedings.

Under Florida Statute 744.102(12), a person may be found incapacitated by a judge if he or she lacks the capacity to manage at least some of his or her property, or to meet at least some of the essential requirements to maintain his or her health or safety.  According to Florida Law, to manage one’s property means to have the ability to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income. According to Florida Law 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.

A petition to determine incapacity may be filed by any adult in good faith. A person’s level of mental capacity is determined after a court-appointed committee examines the alleged incapacitated person, and an adjudicatory hearing is held before the court.  If the court finds, on the basis of clear and convincing evidence, that the person is incapacitated, the court will enter an order of incapacity and appoint a guardian if necessary. An order of incapacity must identify the exact nature and scope of the person’s incapacities, 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 his or her physical or mental health or safety, the specific legal disabilities to which the person is to be subject, and the specific rights that the person is incapable of exercising, or that will be removed or delegated to a court-appointed guardian.

Florida Statute 61.052, provides that Notice of the proceeding for dissolution of marriage be served upon one of the nearest blood relatives, or the guardian of the incapacitated person, and the relative or guardian shall be entitled to appear and to be heard upon the issues. If the incapacitated party has a general guardian, other than the party bringing the proceeding, the petition and summons shall be served upon the incapacitated party, and the guardian; and the guardian shall defend and protect the interests of the incapacitated party.  However, if the incapacitated party has no guardian other than the party bringing the dissolution proceeding, the court must appoint a guardian ad-litem to defend and protect the interest of the incapacitated person. The Guardian should strongly consider having not only a guardianship attorney to represent the Guardian, but to also retain a family law attorney on behalf of the incapacitated person. That family law attorney would represent the incapacitated person’s best interest in any matters pertaining to dissolution of marriage proceedings. 

If you have further questions regarding this issue or other Guardianship or Probate Administration please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. (407) 732-7620.

This information is provided only as educational materials, and does not constitute the providing of legal advice, and does not create an attorney-client relationship.