Incapacity Planning in Florida

What do Florida and Maine have in common? Elderly people. While we currently share the highest numbers of elderly people with the great state of Maine, Florida is on track for a significant increase. By 2030, Florida will see a 34% increase in people 60 and older. Therefore, this group will expand its numbers to become 32.5% of our total population.

Florida also ranks in the top four states with the highest prevalence of Alzheimer’s Disease. We are behind only Maryland, New York, and Mississippi. The impact is projected to increase from the current 580,000 people 65 and older living with Alzheimer’s. With these growing numbers, a healthy discussion about incapacity planning needs to take place between seniors and their families – even if it can be an uncomfortable conversation.


What is Incapacity?

Incapacity is the inability to physically or mentally handle one’s affairs. An incapacitated person is not able to manage personal care, property, or finances, and requires the assistance of another person for decision-making. In Florida, incapacity can only be determined through the courts.

Through a court process, a family member, professional guardian, or other interested person can request an incapacity evaluation of any person. The judge will ask an examining committee of three independent professionals to submit their findings after meeting with the alleged incapacitated person and reviewing medical records. After reviewing their reports, the judge will determine if the individual is deemed incapacitated.

Who Makes Decisions for an Incapacitated Person?

The judge will appoint a legal guardian once a person is adjudicated incapacitated in a court of law. When an individual is deemed incapacitated, the judge removes the rights that the court determines the person no longer has the capacity to exercise. The legal guardian makes decisions for the incapacitated person in areas they no longer have rights, like medical decisions.

Rights That May Be Removed with Incapacity

To marry

To vote

To personally apply for public benefits

To have a driver’s license

To travel

Can a Doctor Say I am Incapacitated?

A doctor can state in your medical file that you can no longer give informed consent. That means, in the doctor’s opinion, that you no longer understand the implications of your decisions, medical and/or financial. At this point, if you have not designated a health care surrogate or power of attorney, it will be necessary to file a petition with the court to have a legal guardian appointed to make such decisions.

What if I am Diagnosed with Alzheimer’s Disease?

A person with Alzheimer’s Disease or other forms of dementia is not automatically considered incapacitated. Despite the prevalence of Alzheimer’s Disease among the elderly in Florida, the diagnosis alone does not mean the person is incapable. This is an important distinction because incapacity is a legal determination that is needed if a person did not designate a decision-maker before becoming incapacitated. In some cases, people in the early stages of dementia can still understand consequences and should be included in decisions about their own care.


How Can I Plan for Incapacity?

Possibly the most important document for incapacity planning is a good power of attorney. In Florida, you can protect yourself and your family with a power of attorney written in Florida after 2011. To ensure your power of attorney will be valid and effective in Florida, it is not advisable to use DIY documents or documents you found online.

Power of Attorney

Principle: the individual giving decision-making authority to act on their behalf

Agent: the person receiving authority to act on the principle’s behalf

An improperly executed power of attorney will create more problems than it will solve. Your power of attorney should be specifically created for you, to list the activities where your agent can act on your behalf. In Florida, this includes a special designation for a power of attorney agent to have the authority to help the principle qualify and apply for public benefits.

Are Power of Attorney and Health Care Surrogate Different?

When you work with your Elder Law Attorney to create advance directives, you decide who will make decisions on your behalf. A power of attorney is for financial or legal matters, where your health care surrogate will make health care decisions. The intent of incapacity planning is to have people who know you making decisions for you when you are no longer able. Without this planning, you may be appointed a guardian through the court who never knew you and will make decisions based on what they believe is best for you.


One of the most important things you can do for yourself to maintain independence is to consult with an Elder Law Attorney to create an aging plan. Incapacity planning allows you to have a say in your financial and health care decisions – even if you lack capacity! – because you created the plan your power of attorney agent and health care surrogate will follow.

Advocates for independence and preventative preparation for life’s “what ifs” are two reasons Elder Law Attorneys are one of the Resources We Love. Learn more about how to assert your independence all the way through end-of-life in the Legal and Financial Section of our Blog.

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