In short: You ask a court. In Florida, only a judge can declare an adult incapacitated, and only after a verified petition, a court-appointed lawyer for the person, a three-member examining committee, and a hearing where incapacity must be proved by clear and convincing evidence under section 744.331. When there is no time to wait, the court can appoint an emergency temporary guardian, and a separate injunction can freeze assets to stop financial exploitation.
The Rule
A diagnosis is not a legal finding. A parent with dementia, a spouse after a stroke, or a sibling with a serious brain injury keeps every legal right until a court says otherwise. Florida’s guardianship law, chapter 744, sets out the only way to change that.
Under section 744.102, an “incapacitated person” is someone a court has judicially determined lacks the capacity to manage at least some of their property or to meet at least some of their essential health and safety needs. The court can remove some rights and leave others. A limited guardian holds only the powers the court assigns; a plenary guardian holds all delegable rights of a person who cannot do any of those tasks.
How It Works
1. The petition. Any adult can file a petition to determine incapacity. Under section 744.3201 it must be verified and must state the facts behind the belief that the person is incapacitated, the names of people who know those facts, which rights the petitioner believes the person cannot exercise, the next of kin, and whether the person already uses help such as supported decision-making and why that help is not enough. A petition to appoint a guardian is filed with it.
2. Notice and a lawyer for the person. The petition and notice must be served on the person and read to them, and served on the next of kin. The court must appoint a lawyer to represent the alleged incapacitated person in every case, and that person may substitute a lawyer of their choice.
3. The examining committee. Within 5 days after the petition is filed, the court appoints a three-member examining committee. One member must be a psychiatrist or other physician, and at least one must have knowledge of the type of incapacity alleged. Each member examines the person and files a written report within 15 days after appointment. If a majority of the committee finds the person is not incapacitated in any respect, the court must dismiss the petition.
4. The hearing. The adjudicatory hearing is generally held at least 10 and no more than 30 days after the last committee report is filed. The person must attend unless that is waived or excused for good cause. The petitioner must prove incapacity by clear and convincing evidence.
5. The order. If the court finds incapacity, its written order must state the exact nature and scope of the incapacity and the specific rights the person can no longer exercise. The person keeps every right the court does not specifically remove, and before removing a delegable right the court must consider whether an alternative to guardianship, such as an existing power of attorney, would do.
If the person’s condition improves, section 744.464 provides a path to restore capacity and rights.
When It Can’t Wait
Once a petition to determine incapacity is filed, the court can appoint an emergency temporary guardian under section 744.3031. The court must find imminent danger that the person’s physical or mental health or safety will be seriously impaired, or that their property is in danger of being wasted, misappropriated or lost unless the court acts right away. The person and their lawyer get at least 24 hours’ notice of the hearing unless the petitioner shows that giving notice would cause substantial harm. The appointment ends after 90 days or when a guardian is appointed, and can be extended once for 90 days if the emergency still exists.
When the danger is financial, there is a separate tool. Under section 825.1035, a vulnerable adult, their guardian, an authorized agent, or a person who is also filing for incapacity and an emergency temporary guardian can petition for an injunction for protection against exploitation. The court can freeze accounts and lines of credit, order the person accused to stay away, and keep paying the vulnerable adult’s living expenses. An ex parte temporary injunction lasts up to 15 days, and the clerk may not charge a filing fee for the petition.
Common Mistakes
- Thinking a doctor’s letter or a family agreement is enough. Only a court order changes a person’s legal rights.
- Filing a petition with conclusions and no facts. The statute requires the factual basis and the names of people who saw it.
- Asking for a plenary guardianship by reflex. The court must tailor the order to the rights the person actually cannot exercise and consider less restrictive alternatives.
- Waiting too long when money is disappearing. The emergency temporary guardian and the exploitation injunction exist for that situation.
- Ignoring the cost. The examining committee and the court-appointed lawyer are paid reasonable fees, usually from the person’s property, and fees can be assessed against a petitioner the court finds acted in bad faith.
Lessons
- Incapacity is a legal status that only a judge can impose, and it can be partial.
- The examining committee drives the case: a majority finding of no incapacity ends it.
- The person has a lawyer and a right to be heard, and the burden is clear and convincing evidence.
- Emergency relief is available, but it requires specific findings and lasts 90 days unless extended.
- A valid power of attorney or other alternative can make guardianship unnecessary, so look for one first.
Source: Sections 744.102, 744.3201, 744.331, 744.3031, 744.464 and 825.1035, Florida Statutes (2026).
Watch the Video
This short video walks through the court process for declaring a loved one incapacitated in Florida, the emergency temporary guardian, and the exploitation injunction. The statutes are linked above.
⚖️ How Do You Declare Someone Legally Incapacitated in Florida?
Go Deeper
- How to Contest a Guardianship in Florida: The Incapacity Hearing, Your Rights, and Restoration
- How to Avoid Guardianship in Florida: The Power of Attorney Is the Least Restrictive Alternative
- Late Reports, No Service: Incapacity Petition Wrongly Dismissed (Sarfaty v. In re M.S.)
Frequently Asked Questions
How do I get power over my elderly parent's decisions in Florida?
Without a power of attorney or other advance directive, you would file a verified petition to determine incapacity and a petition to appoint a guardian in the county where your parent lives. The court appoints a lawyer for your parent and a three-member examining committee, then holds a hearing. The judge decides which rights, if any, are removed and who exercises them.
How long does it take to declare someone incapacitated in Florida?
Under section 744.331, the examining committee is appointed within 5 days after the petition is filed, its reports are due within 15 days after appointment, and the hearing is generally held 10 to 30 days after the last report. Contested cases and delays in service can take longer. In an emergency, a temporary guardian can be appointed sooner.
What happens if the examining committee says my parent is not incapacitated?
If a majority of the three members find the person is not incapacitated in any respect, the court must dismiss the petition. If the committee is split, the case can go to a hearing, where the petitioner must still prove incapacity by clear and convincing evidence.
Can I freeze my parent's bank account if someone is stealing from them?
Yes, a court can. Under section 825.1035, a petition for an injunction for protection against exploitation of a vulnerable adult can ask the court to freeze accounts and credit lines while keeping the adult’s living expenses paid. A person who is also filing for incapacity and an emergency temporary guardian is among those who can bring it, and the clerk may not charge a filing fee.
Talk to a Florida probate litigation lawyer
Weidner Law, P.A. handles Florida probate disputes and probate appeals from St. Petersburg. If you need a probate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
