[blindlaw] question
RJ Sandefur
joltingjacksandefur at gmail.com
Mon Aug 2 09:46:26 UTC 2010
Beth, here are the steps needed as outlined in florida law.
744.331 Procedures to determine incapacity.--
(1) NOTICE OF PETITION TO DETERMINE
INCAPACITY.--Notice of the filing of a petition to determine incapacity and
a petition for the appointment of a guardian if any and copies of the
petitions must be served on and read to the alleged incapacitated person.
The notice and copies of the petitions must also be given to the attorney
for the alleged incapacitated person, and served upon all next of kin
identified in the petition. The notice must state the time and place of the
hearing to inquire into the capacity of the alleged incapacitated person and
that an attorney has been appointed to represent the person and that, if she
or he is determined to be incapable of exercising certain rights, a guardian
will be appointed to exercise those rights on her or his behalf.
(2) ATTORNEY FOR THE ALLEGED INCAPACITATED
PERSON.--
(a) When a court appoints an attorney for an
alleged incapacitated person, the court must appoint the office of criminal
conflict and civil regional counsel or a private attorney as prescribed in
s. 27.511(6). A private attorney must be one who is included in the attorney
registry compiled pursuant to s. 27.40. Appointments of private attorneys
must be made on a rotating basis, taking into consideration conflicts
arising under this chapter.
(b) The court shall appoint an attorney for each
person alleged to be incapacitated in all cases involving a petition for
adjudication of incapacity. The alleged incapacitated person may substitute
her or his own attorney for the attorney appointed by the court.
(c) Any attorney representing an alleged
incapacitated person may not serve as guardian of the alleged incapacitated
person or as counsel for the guardian of the alleged incapacitated person or
the petitioner.
(d) Effective January 1, 2007, an attorney seeking
to be appointed by a court for incapacity and guardianship proceedings must
have completed a minimum of 8 hours of education in guardianship. A court
may waive the initial training requirement for an attorney who has served as
a court-appointed attorney in incapacity proceedings or as an attorney of
record for guardians for not less than 3 years. The education requirement of
this paragraph does not apply to the office of criminal conflict and civil
regional counsel until July 1, 2008.
(3) EXAMINING COMMITTEE.--
(a) Within 5 days after a petition for
determination of incapacity has been filed, the court shall appoint an
examining committee consisting of three members. One member must be a
psychiatrist or other physician. The remaining members must be either a
psychologist, gerontologist, another psychiatrist, or other physician, a
registered nurse, nurse practitioner, licensed social worker, a person with
an advanced degree in gerontology from an accredited institution of higher
education, or other person who by knowledge, skill, experience, training, or
education may, in the court's discretion, advise the court in the form of an
expert opinion. One of three members of the committee must have knowledge of
the type of incapacity alleged in the petition. Unless good cause is shown,
the attending or family physician may not be appointed to the committee. If
the attending or family physician is available for consultation, the
committee must consult with the physician. Members of the examining
committee may not be related to or associated with one another, with the
petitioner, with counsel for the petitioner or the proposed guardian, or
with the person alleged to be totally or partially incapacitated. A member
may not be employed by any private or governmental agency that has custody
of, or furnishes, services or subsidies, directly or indirectly, to the
person or the family of the person alleged to be incapacitated or for whom a
guardianship is sought. A petitioner may not serve as a member of the
examining committee. Members of the examining committee must be able to
communicate, either directly or through an interpreter, in the language that
the alleged incapacitated person speaks or to communicate in a medium
understandable to the alleged incapacitated person if she or he is able to
communicate. The clerk of the court shall send notice of the appointment to
each person appointed no later than 3 days after the court's appointment.
(b) A person who has been appointed to serve as a
member of an examining committee to examine an alleged incapacitated person
may not thereafter be appointed as a guardian for the person who was the
subject of the examination.
(c) Each person appointed to an examining committee
must file an affidavit with the court stating that he or she has completed
the required courses or will do so no later than 4 months after his or her
initial appointment. Each year, the chief judge of the circuit must prepare
a list of persons qualified to be members of an examining committee.
(d) A member of an examining committee must
complete a minimum of 4 hours of initial training. The person must complete
2 hours of continuing education during each 2-year period after the initial
training. The initial training and continuing education program must be
developed under the supervision of the Statewide Public Guardianship Office,
in consultation with the Florida Conference of Circuit Court Judges; the
Elder Law and the Real Property, Probate and Trust Law sections of The
Florida Bar; the Florida State Guardianship Association; and the Florida
Guardianship Foundation. The court may waive the initial training
requirement for a person who has served for not less than 5 years on
examining committees. If a person wishes to obtain his or her continuing
education on the Internet or by watching a video course, the person must
first obtain the approval of the chief judge before taking an Internet or
video course.
(e) Each member of the examining committee shall
examine the person. Each examining committee member must determine the
alleged incapacitated person's ability to exercise those rights specified in
s. 744.3215. In addition to the examination, each examining committee member
must have access to, and may consider, previous examinations of the person,
including, but not limited to, habilitation plans, school records, and
psychological and psychosocial reports voluntarily offered for use by the
alleged incapacitated person. Each member of the examining committee must
submit a report within 15 days after appointment.
(f) The examination of the alleged incapacitated
person must include a comprehensive examination, a report of which shall be
filed by each examining committee member as part of his or her written
report. The comprehensive examination report should be an essential element,
but not necessarily the only element, used in making a capacity and
guardianship decision. The comprehensive examination must include, if
indicated:
1. A physical examination;
2. A mental health examination; and
3. A functional assessment.
If any of these three aspects of the examination is
not indicated or cannot be accomplished for any reason, the written report
must explain the reasons for its omission.
(g) Each committee member's written report must
include:
1. To the extent possible, a diagnosis, prognosis,
and recommended course of treatment.
2. An evaluation of the alleged incapacitated
person's ability to retain her or his rights, including, without limitation,
the rights to marry; vote; contract; manage or dispose of property; have a
driver's license; determine her or his residence; consent to medical
treatment; and make decisions affecting her or his social environment.
3. The results of the comprehensive examination and
the committee member's assessment of information provided by the attending
or family physician, if any.
4. A description of any matters with respect to
which the person lacks the capacity to exercise rights, the extent of that
incapacity, and the factual basis for the determination that the person
lacks that capacity.
5. The names of all persons present during the time
the committee member conducted his or her examination. If a person other
than the person who is the subject of the examination supplies answers posed
to the alleged incapacitated person, the report must include the response
and the name of the person supplying the answer.
6. The signature of the committee member and the
date and time the member conducted his or her examination.
(h) A copy of each committee member's report must
be served on the petitioner and on the attorney for the alleged
incapacitated person within 3 days after the report is filed and at least 5
days before the hearing on the petition.
(4) DISMISSAL OF PETITION.--If a majority of the
examining committee members conclude that the alleged incapacitated person
is not incapacitated in any respect, the court shall dismiss the petition.
(5) ADJUDICATORY HEARING.--
(a) Upon appointment of the examining committee,
the court shall set the date upon which the petition will be heard. The date
for the adjudicatory hearing must be set no more than 14 days after the
filing of the reports of the examining committee members, unless good cause
is shown. The adjudicatory hearing must be conducted at the time and place
specified in the notice of hearing and in a manner consistent with due
process.
(b) The alleged incapacitated person must be
present at the adjudicatory hearing, unless waived by the alleged
incapacitated person or the person's attorney or unless good cause can be
shown for her or his absence. Determination of good cause rests in the sound
discretion of the court.
(c) In the adjudicatory hearing on a petition
alleging incapacity, the partial or total incapacity of the person must be
established by clear and convincing evidence.
(6) ORDER DETERMINING INCAPACITY.--If, after making
findings of fact on the basis of clear and convincing evidence, the court
finds that a person is incapacitated with respect to the exercise of a
particular right, or all rights, the court shall enter a written order
determining such incapacity. A person is determined to be incapacitated only
with respect to those rights specified in the order.
(a) The court shall make the following findings:
1. The exact nature and scope of the person's
incapacities;
2. The exact areas in which the person lacks
capacity to make informed decisions about care and treatment services or to
meet the essential requirements for her or his physical or mental health or
safety;
3. The specific legal disabilities to which the
person is subject; and
4. The specific rights that the person is incapable
of exercising.
(b) When an order determines that a person is
incapable of exercising delegable rights, the court must consider and find
whether there is an alternative to guardianship that will sufficiently
address the problems of the incapacitated person. A guardian must be
appointed to exercise the incapacitated person's delegable rights unless the
court finds there is an alternative. A guardian may not be appointed if the
court finds there is an alternative to guardianship which will sufficiently
address the problems of the incapacitated person.
(c) In determining that a person is totally
incapacitated, the order must contain findings of fact demonstrating that
the individual is totally without capacity to care for herself or himself or
her or his property.
(d) An order adjudicating a person to be
incapacitated constitutes proof of such incapacity until further order of
the court.
(e) After the order determining that the person is
incapacitated has been filed with the clerk, it must be served on the
incapacitated person. The person is deemed incapacitated only to the extent
of the findings of the court. The filing of the order is notice of the
incapacity. An incapacitated person retains all rights not specifically
removed by the court.
(f) Upon the filing of a verified statement by an
interested person stating:
1. That he or she has a good faith belief that the
alleged incapacitated person's trust, trust amendment, or durable power of
attorney is invalid; and
2. A reasonable factual basis for that belief,
the trust, trust amendment, or durable power of
attorney shall not be deemed to be an alternative to the appointment of a
guardian. The appointment of a guardian does not limit the court's power to
determine that certain authority granted by a durable power of attorney is
to remain exercisable by the attorney in fact.
(7) FEES.--
(a) The examining committee and any attorney
appointed under subsection (2) are entitled to reasonable fees to be
determined by the court.
(b) The fees awarded under paragraph (a) shall be
paid by the guardian from the property of the ward or, if the ward is
indigent, by the state. The state shall have a creditor's claim against the
guardianship property for any amounts paid under this section. The state may
file its claim within 90 days after the entry of an order awarding attorney
ad litem fees. If the state does not file its claim within the 90-day
period, the state is thereafter barred from asserting the claim. Upon
petition by the state for payment of the claim, the court shall enter an
order authorizing immediate payment out of the property of the ward. The
state shall keep a record of the payments.
(c) If the petition is dismissed, costs and
attorney's fees of the proceeding may be assessed against the petitioner if
the court finds the petition to have been filed in bad faith.
History.--ss. 9, 26, ch. 75-222; s. 4, ch. 77-328;
s. 1, ch. 78-342; s. 6, ch. 79-221; s. 35, ch. 89-96; s. 20, ch. 90-271; s.
4, ch. 91-303; s. 5, ch. 91-306; s. 7, ch. 96-354; s. 1783, ch. 97-102; s.
76, ch. 2004-265; s. 4, ch. 2006-77; s. 11, ch. 2006-178; s. 44, ch.
2006-217; s. 28, ch. 2007-62.
----- Original Message -----
From: <ckrugman at sbcglobal.net>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Monday, August 02, 2010 2:30 AM
Subject: Re: [blindlaw] question
> The fact that you were 17 at the time was the key factor that started the
> process. In most states competency issues need to be reviewed by a court
> periodically. There are attorneys that specialize in these issues that
> work in the areas of competency and mental health law. I am in California
> but I may be able to find you some resources to try pursuing. You would
> need to demonstrate that you are now capable of handling your affairs and
> most likely need to have a new psychiatric evaluation. Feel free to
> contact me off list as needed.
> Chuck Krugman, M.S.W., Paralegal
> 1237 p Street
> Fresno ca 93721
> 559-266-9237
> ----- Original Message -----
> From: "Beth" <thebluesisloose at gmail.com>
> To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
> Sent: Friday, July 30, 2010 11:44 PM
> Subject: Re: [blindlaw] question
>
>
>>I don't know how Florida did it, but they declared me incompetent
>> because I got involved with some old guy from a rehab center in
>> Daytona Beach. I was seventeen and my parents said I was "obsessed"
>> with various things including a young man in high school. Well, my
>> parents prevented me from having real hobbies and fascinations.
>> Because of this, I can't marry, can't live anywhere I want legally, and
>> so on.
>> Beth
>>
>> On 7/31/10, ckrugman at sbcglobal.net <ckrugman at sbcglobal.net> wrote:
>>> I doubt that it would hold up in any state. Incompetence refers
>>> generally to
>>> a person who is mentally ill or severely disabled enough where they are
>>> not
>>> comprehending or able to take care of their lives. In many states a
>>> person
>>> would have to be placed on conservatorship and there are specific
>>> requirements today regarding conservatorships such as the due process
>>> that
>>> is required for a potential conservatee to go through such as the
>>> appointment of an attornehy and a hearing. At least that is how it is
>>> here
>>> in California and it was pretty much the same when I lived in Michigan.
>>> chuck Krugman, M.S.W., Paralegal
>>> 1237 P Street
>>> Fresno ca 93721
>>> 559-266-9237
>>> ----- Original Message -----
>>> From: "RJ Sandefur" <joltingjacksandefur at gmail.com>
>>> To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
>>> Sent: Friday, July 30, 2010 5:49 AM
>>> Subject: [blindlaw] question
>>>
>>>
>>>>I have a question. Can a person be declared incompetent just because
>>>>they
>>>>are blind?
>>>> RJ
>>>> _______________________________________________
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>>>>
>>>
>>>
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>>
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>
>
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