[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
>>>> _______________________________________________
>>>> blindlaw mailing list
>>>> blindlaw at nfbnet.org
>>>> http://www.nfbnet.org/mailman/listinfo/blindlaw_nfbnet.org
>>>> To unsubscribe, change your list options or get your account info for
>>>> blindlaw:
>>>> http://www.nfbnet.org/mailman/options/blindlaw_nfbnet.org/ckrugman%40sbcglobal.net
>>>>
>>>
>>>
>>> _______________________________________________
>>> blindlaw mailing list
>>> blindlaw at nfbnet.org
>>> http://www.nfbnet.org/mailman/listinfo/blindlaw_nfbnet.org
>>> To unsubscribe, change your list options or get your account info for
>>> blindlaw:
>>> http://www.nfbnet.org/mailman/options/blindlaw_nfbnet.org/thebluesisloose%40gmail.com
>>>
>>
>> _______________________________________________
>> blindlaw mailing list
>> blindlaw at nfbnet.org
>> http://www.nfbnet.org/mailman/listinfo/blindlaw_nfbnet.org
>> To unsubscribe, change your list options or get your account info for 
>> blindlaw:
>> http://www.nfbnet.org/mailman/options/blindlaw_nfbnet.org/ckrugman%40sbcglobal.net
>
>
> _______________________________________________
> blindlaw mailing list
> blindlaw at nfbnet.org
> http://www.nfbnet.org/mailman/listinfo/blindlaw_nfbnet.org
> To unsubscribe, change your list options or get your account info for 
> blindlaw:
> http://www.nfbnet.org/mailman/options/blindlaw_nfbnet.org/joltingjacksandefur%40gmail.com 
-------------- next part --------------
A non-text attachment was scrubbed...
Name: transparent_spacer_1X1.gif
Type: image/gif
Size: 43 bytes
Desc: not available
URL: <http://nfbnet.org/pipermail/blindlaw_nfbnet.org/attachments/20100802/c9e652a2/attachment.gif>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: main_footer_01.gif
Type: image/gif
Size: 1867 bytes
Desc: not available
URL: <http://nfbnet.org/pipermail/blindlaw_nfbnet.org/attachments/20100802/c9e652a2/attachment-0001.gif>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: main_footer_03.gif
Type: image/gif
Size: 385 bytes
Desc: not available
URL: <http://nfbnet.org/pipermail/blindlaw_nfbnet.org/attachments/20100802/c9e652a2/attachment-0002.gif>


More information about the BlindLaw mailing list