How Do You Get Someone Declared Incompetent in Florida?

If you’re asking how do you get someone declared incompetent in Florida, here’s the short answer. An adult files a verified petition to determine incapacity in the circuit court. A judge then decides after a formal process that includes notice, a medical evaluation, and a hearing.

Florida law uses the word “incapacity.” Families usually say “incompetent.” This guide walks through each step in plain English. It is written by Robinson Casey, a Florida firm that limits its practice to Marchman Act petitions and guardianship matters for families across South Florida and statewide.

What “Incompetent” Means Under Florida Law

“Incompetent” is the everyday word for a concern that Florida’s guardianship law calls “incapacity.” Under Fla. Stat. § 744.102, an incapacitated person is someone a court has judicially determined to lack the capacity to manage at least some property. The same person may also lack the capacity to meet at least some essential health and safety needs.

The key word is “judicially determined.” A family member’s worry, a doctor’s note, or a bank’s concern does not make someone incapacitated on its own. Only a judge can make that finding.

Section 744.102 defines terms used throughout Florida’s guardianship chapter, including “attorney for the alleged incapacitated person” and “professional guardian.” To “manage property” means to obtain, administer, and dispose of property, benefits, and income. To “meet essential requirements for health or safety” means to take the actions needed to provide health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.

This page covers the guardianship route under Chapter 744. If the main concern is substance use, a different law may apply. Our Marchman Act attorney page explains that route.

Who Can File a Petition to Determine Incapacity?

Any adult can sign the petition, and it goes to the circuit court. Under Florida law, any adult may file a petition to determine a person’s incapacity, and the petition must be verified.

Location matters. Under Fla. Stat. § 744.1097, the incapacity proceeding goes where the person resides or is found, but this section does not apply to veterans. For a Florida resident, a guardian is appointed in the county where that person lives; if the person is found in another county, the venue may instead be the county where the person is found.

Wrong-county filings do happen. In a Marchman Act case, Florida’s Fifth District Court of Appeal treated a wrong-county filing as a venue problem, not a loss of the court’s power to act. However, the filing of the petition in the wrong county did not divest the circuit court in Putnam County of jurisdiction (J.P. v. J.N.).

Your relationship to the person also matters. The petition must state it, along with the names and addresses of the next of kin. If you have money or caregiving stakes, expect the judge to look at that too. When the court picks a guardian, it must consider potential conflicts of interest (Fla. Stat. § 744.312).

Filing the Petition and Notice to the Person Involved

The petition must lay out facts, not just a general worry. The petitioner must state the factual information behind the belief that the person is incapacitated. The petition must also name the people who saw those facts firsthand (Fla. Stat. § 744.3201).

The petition also asks for the person’s primary language and the name of their attending or family doctor, if known.

The petition must say whether the person uses help to make decisions, including supported decisionmaking. If so, it must explain why that help isn’t enough.

Notice comes next. A petition to determine incapacity may be executed by an adult person; the notice and copies of the petitions are governed by Fla. Stat. § 744.331. The notice must state the hearing time and place, that an attorney has been appointed, and that if the person is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on her or his behalf (Fla. Stat. § 744.331).

Some cases can’t wait. An emergency temporary guardian can be appointed after a petition is filed but before a guardian is named. The court must find imminent danger to health, safety, or property. Notice is due at least 24 hours before that hearing, unless the petitioner shows that substantial harm would occur (Fla. Stat. § 744.3031).

The Examining Committee and Medical Evaluation

The court must appoint a three-member examining committee within 5 days after the petition is filed. The statute sets strict rules for who can serve (Fla. Stat. § 744.331).

One member must be a psychiatrist or other physician. One member must know the type of incapacity alleged. The attending or family physician usually cannot serve unless good cause is shown. If that doctor is available, the committee must consult with them. Many families are surprised by this rule.

Members cannot be related to or associated with one another, the petitioner, or the person. The petitioner and the attorney for the alleged incapacitated person must be served with all examining committee reports at least 10 days before the hearing on the petition, unless the reports are not complete, in which case they may waive the 10-day requirement and consent to the court considering the report at the adjudicatory hearing. Members must be able to communicate with the person in the person’s language, or in a way the person can understand.

The evaluation looks at the person’s ability to keep key rights. Those include the rights to marry, vote, contract, manage property, hold a driver license, decide where to live, consent to medical treatment, and make decisions about their social life.

The clerk must serve each committee member’s report within 3 days after receiving it. Fla. Stat. § 744.331 reads: “The petitioner and the attorney for the alleged incapacitated person must be served with all reports at least 10 days before the hearing on the petition, unless the reports are not complete, in which case the petitioner and attorney for the alleged incapacitated person may waive the 10 day requirement and consent to the consideration of the report by the court at the adjudicatory hearing.” Either side may object in writing no later than 5 days before the adjudicatory hearing. If an objection is timely, the court applies the rules of evidence to decide whether the report comes in (Fla. Prob. R. 5.550).

The Hearing and What the Judge Decides

A judge decides at an adjudicatory hearing whether the person lacks the capacity for some tasks, or for all of them. The judge also names the specific rights the person cannot exercise.

When an order determines that a person is incapable of exercising delegable rights, it must specify whether there is an alternative to guardianship that will sufficiently meet the person’s needs (Fla. Prob. R. 5.550). This requirement matters. A petition for a guardian must say whether the petitioner knows of alternatives. Those include trust agreements, powers of attorney, health care surrogate designations, and guardian advocates. If alternatives exist, the petition must explain why they’re not enough (Fla. Prob. R. 5.560).

Gather any existing documents early. Find out whether the person already signed a power of attorney or a health care surrogate form.

Results depend on the facts of each case. No one can predict how a judge will rule.

What Happens After the Court Finds Incapacity

After a finding, the court names a guardian. The type depends on how much the person can still do. A plenary guardian holds all delegable rights and powers. That applies when the person can’t perform all the tasks needed to care for their person or property. A limited guardian receives only the powers the court lists. That applies when the person can do some tasks but not all (Fla. Stat. § 744.102).

When choosing a guardian, the court considers the person’s own wishes. If the person can’t express a preference, the court considers the next of kin’s wishes. If no standby or preneed guardian can be appointed, the court may appoint any fit and qualified person. It gives preference to someone who is related by blood or marriage to the ward, has relevant educational, professional, or business experience, can manage the finances involved, or can meet the law’s requirements and the case’s unique needs (Fla. Stat. § 744.312).

The person keeps important rights. Section 744.312 covers who the court appoints as guardian, such as the preference of a minor age 14 or over and any person named as guardian in a will in which the ward is a beneficiary; it does not list continuing review of rights. They also include the right to be restored to capacity at the earliest possible time. The person keeps the right to counsel and to access the courts (Fla. Stat. § 744.3215).

A guardian also cannot commit the person to a facility without specific court authority. Some rights, like voting, can be removed by the order but are not handed to the guardian.

An emergency temporary guardianship is short-term by design. The emergency guardian must file a final report no later than 30 days after that authority ends (Fla. Stat. § 744.3031).

How Long It Takes and Who Represents Whom

There is no fixed timeline. The court’s calendar, the evaluation, and any objections all shape how long a case runs. The statute does set some clocks, like the 24-hour notice before the hearing on an emergency temporary guardianship petition and the 30-day deadline for the emergency guardian’s final report. Those clocks don’t tell you when a judge will rule.

Costs depend on the facts of each case and on what the court requires. Expect court costs, evaluation work, and lawyer fees.

In a Marchman Act case, Florida’s Second District Court of Appeal held that the respondent has a due-process right to counsel (Hillsborough County v. Albrechta). In emergency temporary guardianship proceedings, the court appoints a lawyer to represent the alleged incapacitated person, not your interests as the petitioner.

Talk Through Your Family’s Situation With Robinson Casey

If you’re trying to decide whether court is the right path for a parent who can’t manage money, medicine, or daily safety, you don’t have to decide alone. Maybe bills are going unpaid. Maybe medication is being skipped, or a relative keeps getting lost on the way home. Making that call is hard, and the court process raises questions you may not know how to answer yet.

Call Robinson Casey at (561) 849-4149, or send a message through our contact form. We can talk through the facts of your family’s situation and how the court process would apply. The first consultation is free, confidential, and carries no obligation to continue.

Robinson Casey focuses on Marchman Act petitions and guardianship matters for families across South Florida and statewide. Richard J. Casey III, Esq. is the responsible lawyer for this page. No lawyer can promise how a court will rule.