What Happens at an Incapacity and Guardianship Hearing in the Orlando, Florida Area?
- May 4, 2022
- ontarget
- Elder Law
- 0 Comments
At an Incapacity and Guardianship Hearing, the Judge determines if the Alleged Incapacitated Person has capacity, limited capacity, or no capacity. The Judge then decides if there are less restrictive alternatives to a Guardianship, such as a Power of Attorney, Trust, or a Health Care Surrogate that will suffice.
If the judge finds that there is a need for a Guardianship, the judge then decides if there is a plenary guardianship or limited guardianship. The judge also must decide who to appoint as a guardian. The judge may appoint a person who has petitioned the court to be guardian, such as a spouse, family member, or professional guardian. A blood relative or spouse has a preference to be a guardian over a non-blood relative.
Which Rights are Involved
The judge must also determine which rights to delegate to the guardian and which rights the ward will retain. The rights that the court may delegate to a guardian include the following:
- to personally apply for government benefits
- to contract
- to sue and defend lawsuits
- to manage property or to make any gift or disposition of property
- to determine the residence
- to consent to medical and mental health treatment
- to marry
- to travel
- to seek or retain employment
- to make social decisions
The judge can also take away the ward’s right to drive and the right to vote.
How the Determination is Made
How does the judge make such a determination? The judge reviews the examining committee reports when they are entered into evidence. The examining committee reports usually consist of reports of an examination of the alleged incapacitated person by a psychiatrist, a psychologist, and a third person who is usually a licensed mental health worker.
The alleged incapacitated person and the petitioner may also call lay witnesses or other doctors to show that the alleged incapacitated person has capacity or lacks capacity.
If you have more questions regarding an Elder Law matter, 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 does not form an attorney client privilege.