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What is a competency hearing?

When other provisions are lacking in estate plans, a testator may need a guardian to make financial and/or health decisions in his or her behalf. If the person voluntarily decides to appoint one, then no formal court hearing is necessary. However, if the person has not named a guardian, and you feel that one is necessary, you can take steps to establish an involuntary guardianship to protect your loved one.

The guardianship process in Florida entails a competency hearing to determine if the person is truly incapacitated and in need of a guardian, as opposed to a less restrictive option.

Knowing what to expect from a competency hearing can help you better prepare for one so you can be successful in securing the well-being of your loved one.

Initiating the hearing

First, you must file a petition with the court and notify the potential ward of the petition and hearing. Each party must have legal representation. Your loved one may choose the attorney, or the court will appoint one.

Before the hearing

The court will create a committee of three professionals to examine your loved one. One of these people must be a physician (including a psychiatrist), and the remaining two can be any of the following:

  • Another physician
  • Registered nurse
  • Nurse practitioner
  • Gerontologist
  • Social worker

One of these committee members must have knowledge relevant to the specific incapacitation you think your loved one has. Each person will perform a physical, mental and functional assessment of the potential ward and then file a report, which all parties will receive before the hearing. The report includes a diagnosis and judgment on the ability of your loved one to exercise rights. If most of the committee do not determine the presence of incapacitation, the process ends there.

At the hearing

If the evaluation does uncover incapacitation, the hearing will proceed. Upon review of all evidence, the judge will decide if the person is incapacitated and to what extent. Your loved one may retain some rights or none at all. The judge will then appoint a guardian or alternative representative depending on the circumstances.

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