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When does Irrational Behavior Become Incapacity in Terms of a Guardianship?

Distinguishing between irrational behavior and incompetence can be difficult. It is not uncommon for older adults to develop persisting fears, worries, and complaints that may be irrational or paranoid. This can often be related to an underlying cognitive impairment, such as Dementia, Alzheimers, or other illness, that has not been detected or diagnosed by their doctor.  

Everyone at one time or another may act or behave in a manner that may be out of the ordinary to many people. However, does that type of behavior, if repeated more frequently over a shorter period of time give rise to the level of incapacity in the aspect of that person’s trust or does it create a need for a consideration of a Guardianship proceeding?

Under Florida Statutes the definition of an incapacitated person means a person who has been judicially determined to lack the capacity to manage at least some of their property or to meet at least some of the essential health and safety requirements of the person. In order to have a person declared incompetent, Guardianship proceedings must be commenced by a person who petitions the court to be appointed as the Guardian of the alleged incapacitated person.  The Judge would assign three examining committee members, such as a psychologist, a medical doctor, and a layperson to evaluate the alleged incapacitated person and make a recommendation based upon that examination.

Each member of the examining committee will examine the alleged incapacitated person, and each examining committee member must determine the alleged incapacitated person’s ability to exercise their rights as specified in Florida Statutes.  The examining committee member must be given access to, and may also consider, previous examinations of the alleged incapacitated person. Those may include, but are not limited to, habilitation plans, school records, and psychological and psychosocial reports voluntarily offered for use by the alleged incapacitated person. Each examining member will submit a written report to the court of their recommendation after examining the alleged incapacitated person.

Consider the following scenario:  A 72-year-old widowed man, meets and begins corresponding via Facebook with a 40-year-old woman who was just recently released from prison. The widowed man buys the woman a brand-new Corvette and various other expensive gifts.  The widowed man’s two daughters want to declare him incapacitated.

In this scenario, is the widowed man acting irrationally or is he incompetent?  Talking with elderly loved ones about their need for additional support and assistance when they are exhibiting irrational behavior or making poor decisions can often be quite difficult. With the right assistance and planning, it can become much easier.  Whenever possible, begin the process of providing assistance for important tasks, like bill paying, health care management, and driving, before aging parents reach a crisis stage. This may not always be feasible, but if the need for assistance is sudden and immediate, remember diplomacy and tact will generally elicit a significantly better outcome than issuing overt directives. You should speak with a knowledgeable and experienced Guardianship and Estate Planning attorney who can provide you with guidance regarding how to handle this and other related issues.

Consider the following scenario: An elderly couple have been married for a very long time. The Husband has worked his whole life supporting his Wife and saving for their future retirement. The Wife has a son from a previous relationship and is her only child. The son does not work, has failed to obtain employment or further his education, and the Wife provides her son with a large sum of money in excess of $150,000 from the monies the Husband earned during their marriage. After the Husband finds out about the money and puts a stop to the Wife funding the son, the Wife decides to file for divorce. The Husband wants to have the Wife declared incompetent.

In this scenario, is the Wife acting irrationally or evidencing signs of incapacity? Is the Wife being financially exploited by her son? Is the son causing her to act due to coercion and fear? Is the Wife able to realize her actions are dangerously depleting irreplaceable funds that she may need for her own use and care as she ages? You should speak with a knowledgeable and experienced Guardianship and Estate Planning attorney who can provide you with guidance regarding how to handle this and other similar issues.

It is very important to remember that making bad decisions can occur at sixteen (16) years of age just as it can at eighty-six (86) years of age. We have the freedom to make bad choices. The issue, as one ages, is that person a vulnerable elder adult who is subject to fraud and exploitation due to a cognitive deficit, or suffering, for example from Dementia that would create a situation that calls for a court Guardianship to be established. The Guardianship could protect that person and their assets from being exploited and assist in preserving that person’s wellbeing and safety.

For assistance regarding these issues or other Guardianship or Probate Administration matters please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7600, and visit my website at www.AnnMarieGildenLaw.com.

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