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Can My Elderly Parent Be Declared Incompetent?

lawyer discussing about elderly patient as incompetent concept

It’s an unfortunate reality that many individuals will have the burden of caring for parents who can no longer care for themselves. Whether you can have an elderly parent declared incompetent (legally referred to as “incapacitated”) in Naples, Florida is complicated. If you have questions about declaring a parent incompetent, you should speak to an attorney with experience in guardianship law.

How Does Florida Law Define Incapacity?

Under Florida law, an incapacitated person is someone who the court has decided lacks the capacity to manage at least some of their property or at least some of their essential health and safety requirements.

When Can My Elderly Parent Be Declared Incompetent in Naples?

In Florida, incapacity is decided by a judge. The court will examine several factors when deciding whether your parent is legally incompetent in Naples. They will consider your parent’s ability to:

• Contract,
• Marry,
• Vote,
• Seek or retain employment,
• Obtain a driver’s license and operate a vehicle,
• Sue and defend lawsuits,
• Apply for government benefits,
• Manage property or make gifts of property,
• Determine their residence, and
• Consent to medical and mental health treatment.

The above list is not exhaustive, and the court can consider any relevant factors.

What is the Process for Declaring Someone Incompetent in Naples?

If you want your parent to be declared incompetent (incapacitated) in Naples, you must follow the procedures in Florida Statute 744.331. The general steps are outlined below.

1. A family member or other interested party files a Petition to Determine Incapacity with the court.
2. The petition must be served on and read to the alleged incapacitated person. It must also be served to their attorney and all next of kin identified in the petition.
3. The court appoints an attorney for the alleged incapacitated person. The alleged incapacitated attorney can substitute their own lawyer for the court-appointed attorney.
4. The court appoints an examining committee to assess the mental and physical condition of the alleged incapacitated individual. The committee members are individuals with medical backgrounds and training in making medical capacity determinations (i.e., a psychologist, a psychiatrist, a physician, a registered nurse, or a licensed social worker).
5. The examining committee files a report with its findings to the court.
6. If two out of the three committee members determine that the individual has the capacity, the court will dismiss the petition.
7. If at least two members determine the individual is incapacitated, the court will review the report and hold a hearing where testimony and other evidence may be heard.
8. The judge will issue an order determining incapacity and state whether it is limited or full in scope.

Call A Naples Guardianship Lawyer

It is difficult to know what is involved in having an elderly parent declared incompetent or incapacitated and how to approach this emotional situation. Discuss your concerns with attorney James Nici. He can help you help you with his experience and expertise.

If you have questions about this issue or other issues in estate planning or end of life decisions for yourself or parents you care for, you should contact Nici Law Firm. James R. Nici is an experienced Naples attorney with over 25 years of experience. Contact our office today at (239) 449-6150 or use our web form to set up a free consultation.

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