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St. Thomas Law Review

First Page

64

Document Type

Article

Abstract

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. 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. 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 ... . 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. 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.

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