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What is Needed to Prove Restoration of Capacity in a Guardianship Case in the Orlando, Florida or Lake Mary, Florida Area?

You have been declared incompetent. It may be because of mental illness or another reason. You are now doing well, seeing your psychiatrist and your psychologist, and taking your medication. You are functioning in society. You want to file a Suggestion of Capacity. Where do you do that? A Suggestion of Capacity must be filed with the guardianship court in which the guardianship is pending. Florida Statute 744.464(a)-Any interested person, including the ward, may file a suggestion of capacity. The suggestion of capacity must state that the ward is currently capable of exercising some or all of the rights which were removed. What happens next after you file a Suggestion of Capacity? 

Florida Statute 744.464 (b)-”Upon the filing of the suggestion of capacity, the court shall immediately appoint a physician to examine the ward. The physician must examine the ward and file his or her report with the court within 20 days after the appointment. The Physician submits a report to the Court. In the report, the Physician informs the court what the Ward is capable of doing and what the Ward is incapable of doing. The Physician also includes in their report whether a guardianship is needed and whether it is plenary or limited, or whether Capacity should be restored. 

“Florida Statute 744.464, states that the court shall immediately send notice of the filing of the suggestion of capacity to the ward, the guardian, the attorney for the ward, if any, and any other interested persons designated by the court. Formal notice must be served on the guardian. Informal notice may be served on other persons. Notice need not be served on the person who filed the suggestion of capacity. The statue also states the following:

(d) Any objections to the suggestion of capacity must be filed within 20 days after service of the notice.

(e) If an objection is timely filed, or if the medical examination suggests that full restoration is not appropriate, the court shall set the matter for hearing. If the ward does not have an attorney, the court shall appoint one to represent the ward.

(f) Notice of the hearing and copies of the objections and medical examination reports shall be served upon the ward, the ward’s attorney, the guardian, the ward’s next of kin, and any other interested persons as directed by the court.

Further, the statute discusses- (3) ORDER OF RESTORATION.—

(a) If no objections are filed, and the court is satisfied that the medical examination establishes by a preponderance of the evidence that restoration of all or some of the ward’s rights is appropriate, the court shall enter an order of restoration of capacity, restoring all or some of the rights which were removed from the ward in accordance with those findings.”

If you have more questions regarding a Marital and Family 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. You may also visit my website at: https://www.annmariegildenlaw.com 

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