Standards and basic principles of examining and evaluating capacity in guardianship proceedings.

AuthorVillavicencio, Stephanie

    In the realm of guardianship law, an elder law attorney is well aware that a declaration of incapacity may strip an individual of more rights than that of a convicted felon. (1) The concept of whether capacity is a matter of fact or law is often debated. The framework for establishing standards governing which rights warrant removal is tenuous and complex. A factual determination of incapacity requires a finding, by clear and convincing evidence, that the Respondent, or alleged incapacitated person, is both functionally unable, either wholly or partially, to care for their person (self) and/or property. (2) This determination culminates in a finding by the court that the impaired person lacked the ability to make or communicate certain decisions as the result of some proven disorder or disability. (3)

    The intent of the Florida legislature is to make available the least restrictive alternative to guardianship and seek to permit "incapacitated persons to participate as fully as possible in all decisions affecting them ...

    in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible ..." (4) Essentially, the state seeks to provide assistance to the public in a form that least interferes with the legal capacity of a person to act on their own behalf. Florida law presumes capacity and supports the least restrictive alternative consistent with the limitations of a person presumed to lack capacity, in the event that a limitation must be placed on their personal autonomy. (5) This article will explore the shortcomings in the current state of the law, when a court has to decide whether fundamental civil rights warrant removal due to an individual's lack of capacity to exercise those rights.


    There are basic principles when determining incapacity in guardianship proceedings. The first, and often most misguided, is the notion that incapacity is a medical and not a legal decision. To that end, it correctly follows that the question of capacity is to "be presented to the court as a triable issue of fact." (6) Although the court should weigh testimony from health professionals, there are some states that make an incapacity determination based upon non-medical evidence. (7) This is a material deficiency in the judicial process of determining incapacity due to the lack of expert medical testimony presented for the court to weigh. A person is or is not incapacitated simply because of the ability or inability to complete a specific task.

    The same issues stem from whether a person lacks capacity with respect to exercise certain rights while retaining capacity to exercise others. To further complicate the matter, an individual may be able to perform certain tasks proficiently on their own while having an incomplete ability to perform other tasks with or without assistance. (8) Notwithstanding, under Florida law capacity is presumed. (9)

    Under Florida law, six rights may be removed which cannot be delegated to a guardian: (1) the right to marry; (2) the right to vote; (3) the right to personally apply for government benefits; (4) the right to have a driver's license; (5) the right to travel; and (6) the right to seek or retain employment. (10) Seven rights that may be removed and delegated to a guardian: (1) the right to contract; (2) the right to sue and defend lawsuits; (3) the right to apply for government benefits; (4) the right to manage property (or make gifts or disposition of property); (5) the right to determine residence; (6) the right to consent to medical and mental health treatment; and (7) the right to make decisions about one's social environment or other social aspects of one's life. (11) These fights are specific transactions that require distinct cognitive abilities necessary to appreciate the consequences of making any of the decisions. The law, although enacted with good-natured intentions, lacks appreciation that there is not a global diagnosis for determining whether an individual has capacity. A definitive analysis should be engaged in when assessing the degree of a person's abilities and finding the specific limitations of capacity with regard to any right that may be removed. (12)

    One's surroundings can also affect the demands on an individual's ability to exercise certain skills, such as activities of daily living or the management of finances. The presence of family and friends also determines whether the individual will receive support and assistance in managing their own affairs. (13) This gives rise to the separation that many states use in organizing whether an individual requires assistance with personal matters (i.e., making medical decisions) or financial matters (i.e., gifting property). (14) The gray area widens when certain matters overlap into both categories. For example, the ability to determine your residence requires both the necessities of having to determine your social environment (e.g., the ability to assess your needs in terms of accommodating your everyday living requirements) and the cost of the same.


    It is important to note that all too often, the trial court affords the greatest weight to the expert testimony and recommendations of the physicians or psychologists appointed to evaluate the alleged incapacitated person. (15) These court-appointed "experts" employ methods of evaluating an individual to determine whether there is an issue regarding capacity. The experts perform a battery of tests to determine whether the individual has a mental disorder. In their analysis, all of these doctors should seek to obtain information relevant to the individual's diagnosis and functional capacity. They must also conduct a mental examination that is coupled with a detailed review of the individual's psychiatric history. (16) The examination touches upon a series of categories such as motor activity, speech, mood, belief, perception, and cognition. (17)

    One can easily conclude that because a physician or psychiatrist is presumed to be highly skilled in diagnosing mental capacity, the court may adopt their recommendation and impose a guardianship without questioning the methods the physician or expert applied while examining and diagnosing the individual. (18) This calls into question whether the courts are properly weighing evidence and protecting the rights of an individual where capacity is a legal conclusion and not a medical determination. The court must reconcile the intent of the legislature and the criteria used by the court-appointed experts to make a decision. Many times, a doctor's report contains diagnostic information and conclusory statements obtained from a person's past medical history. (19) However, the opinion of the expert examiner as to the issues of capacity is effective only as to the date of the examination. This is because capacity can fluctuate where it is probable that an individual experiences lucid intervals; or the degree of incapacity does not warrant removal of a right.

    In Florida, the petitioner's burden of proof requires presenting "clear and convincing" evidence to support a judicial determination of incapacity. (20) The "clear and convincing" standard has been defined to require the proffer of evidence to "be of a quality and character so as to produce in the mind of the [court] a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." (21) The Florida courts have also required "clear and convincing" evidence with regard to: coherency in testimony; orientation as to person, place, and time; but not sworn affidavits from psychiatrists indicating improvement or sufficiency of capacity in making financial, medical, and testamentary provisions. (22) The "clear and convincing" standard is an intermediary standard between the "preponderance of the evidence" standard applied in most civil cases and the proof beyond a reasonable doubt charged to the state in criminal matters. (23) Conversely, a ward petitioning for restoration bears the "preponderance of the evidence" burden of proof. (24)


    In Florida, a three-member committee is appointed by the court to determine whether an individual lacks capacity. One of those members must be a psychiatrist or other physician and the remaining two must be qualified as per the statutory requirements. (25) At least one of the three members are required to "have knowledge of the type of incapacity alleged in the petition." (26) Because the petitioner's due diligence may include attaching to the Petition to Determine Incapacity a letter from the respondent's physician, the attending or family physician may not be appointed to the examining committee, unless...

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