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Understanding the Relationship Between Guardianship and Incapacity Proceedings in Florida


If an adult is no longer able to manage their own legal, financial, or medical affairs, a guardianship can help protect their interests and overall well-being. As explained by the Florida Courts, an adult guardianship will only be put into place when no less restrictive alternatives will work. Under Florida law, a person must be ‘incapacitated’ to have a guardian appointed on their behalf.

There is some general confusion about the differences between guardianship proceedings and incapacity proceedings. Here, our Tampa guardianship lawyers highlight four things you need to know about the relationship between guardianship and incapacity.

  1. A Ruling of Incapacity Always Comes First 

You can only set up a guardianship for a vulnerable loved one if that person is actually found to be “incapacitated” for the purposes of Florida law. As was mentioned above, Florida state policy favors the least restrictive alternative—meaning a guardianship should generally be viewed as a last option. The first step in the process of having a guardian appointed is establishing incapacity. In Florida, any “interested person” has the right to file a petition to get another person declared incapacitated. Florida defines the term “interested person” broadly—it could be anyone from an adult child to a concerned neighbor.

  1. Strong Evidence is Needed to Support a Finding of Incapacity 

When you file a petition for incapacity in Florida, the court will appoint a qualified attorney to represent the alleged incapacitated person—or as they are sometimes referred to, the ‘AIP’. Within a few weeks, an incapacity proceeding will likely be scheduled. There will be an investigation into the status of the AIP. During this stage of the process, any party involved in the case has the right to submit evidence at an incapacity hearing. If you are attempting to get an adult guardianship set up for a loved one, you need strong evidence in support of incapacity.

  1. Potential Guardians Must Establish their Qualifications

Here is where it is important to clarify that incapacity proceedings and guardianship proceedings are not the same thing. In most cases, a person who files an incapacity petition will also file a concurrent guardianship petition. That being said, it is possible for the incapacity petition to be successful while the guardianship petition is not successful. If you want to become a guardian for a vulnerable adult, you may need to prove both their incapacity and that you are the appropriate person to fill the position.

  1. Get Help From a Tampa, FL Adult Guardianship Lawyers Today 

Getting appointed as a guardian for a vulnerable adult can be a complicated, even overwhelming process. Professional legal guidance is available. At Bubley & Bubley, P.A., our top-rated Florida estate planning lawyers are committed to providing trustworthy, reliable guidance to clients. If you have questions about preparing for an adult guardianship hearing, we are more than ready to help. For a completely confidential consultation, please contact us today at (813) 454-0261. We represent clients in Tampa, St. Petersburg, Clearwater, and throughout the region.





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