What Constitutes Incapacity?

An individual may lose their ability (capacity) to manage their affairs and make their own medical decisions, due to an accident, injury or illness. An elderly individual may lose capacity because of the effects of Alzheimer’s Disease or from other conditions which negatively impact on memory and brain function. If that individual does not have an Estate Plan with a Durable Power of Attorney and a Designation of Health Care Surrogate which appoints a decision-maker for them, then a court proceeding may be needed to determine them incapacitated, and have the court appoint a guardian to act on their behalf.   A court will appoint a guardian only for those incapacitated persons whose needs cannot be met through less restrictive means of intervention. A guardian may be appointed to act on behalf of an incapacitated person to: manage their assets and income; sue and be sued; determine their residence; determine with whom the person socializes; make medical decisions; apply for public benefits; and, to contract.

Is a Guardian Always Necessary?

Mr. Connors successfully argued in the Circuit Court of Palm Beach County that an individual could be found to be incapacitated by the court, but did not need a guardian appointed, because they had a Durable Power of Attorney and a Designation of Health Care Surrogate authorizing their spouse to manage their affairs and make medical decisions for them. The 4th District Court of Appeals affirmed the decision of the Circuit Court. Smith v. Lynch, 821 So. 2d 1197, Fla. 4th DCA, 2002. The Florida Legislature subsequently amended Florida Guardianship Law to recognize the decision in Smith v. Lynch, requiring courts to first determine whether less restrictive means such as a Durable Power of Attorney and a Designation of Health Care Surrogate were available to address the needs of an incapacitated person, before appointing a guardian. Click here to read the Smith v. Lynch case.

If you have questions about Incapacity and Guardianship please contact our office.

An elderly person wearing a hospital gown and walking with a walker in a hospital room.