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As we recently discussed, under Florida law, there are a dozen reasons for removing a personal representative (See Florida Statute 733.504). Included among this statutory list of causes for removal, is removing the personal representative because they have been “adjudicated to be incapacitated.”

What does adjudicated mean and how do you know if a personal representative is incapacitated? The answers to these questions are especially important if you, as an interested person to an estate, believe that the personal representative’s behavior is harming the estate.


Is the Named Personal Representative Protected?

Under current law, Judges seek to protect the decedent’s choice of personal representative. According to Florida case law, probate courts are guided by the notion that “[t]he removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered.” In re Murphy’s Estate, 336 So.2d 697, 699 (Fla. 4th DCA 1976).

Notwithstanding this standard, the probate court judge does have the discretionary power to remove a personal representative.  The appellate court (should that judge’s decision be appealed) will respect the judge’s determination and only alter the judge’s ruling if there is a clear showing that the judge abused his or her discretion in making the decision to remove the personal representative.

Which means, judges can remove a personal representative but will only do so when they have strong evidence of the need to do so.

What Is Incapacitated?

An individual is considered incapacitated under Florida law if they “…lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.” Florida Statute 744.102(12).

It is not easy to prove someone is legally incapacitated in Florida. Strict procedures must be followed as outlined in Florida Statute 744.331, which includes the appointment, by a judge, of an examining committee who are directed to follow stringent reporting requirements.  The examining committee is directed to conduct a comprehensive examination of the alleged incapacitated person and prepare a report for the judge to review (the report must include several pieces of statutorily required information).  The examination must include, if indicated:

1. A physical examination;
2. A mental health examination; and
3. A functional assessment.

If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report submitted to the judge must explain the reasons for its omission.

What is Adjudication?

Even if all the heirs, beneficiaries, and creditors gathered together in a probate courtroom and pointed their fingers at the personal representative, and in one voice cried out to the probate court judge that the representative was incapacitated and should not serve, that would make no difference under Florida law. The personal representative can not be removed by unanimous vote.

Instead, incapacity must be determined in a judicial proceeding. A petition must be filed with the clerk and the personal representative must have the opportunity to defend him or herself in the proceeding. Florida Statute 744.3201 provides the steps that must be taken here, which include filing a petition before the court that contains very specific information that is sworn to be accurate:

The petition must be verified and must:
(a) State the name, age, and present address of the petitioner and his or her relationship to the alleged incapacitated person;
(b) State the name, age, county of residence, and present address of the alleged incapacitated person;
(c) Specify the primary language spoken by the alleged incapacitated person, if known;
(d) Allege that the petitioner believes the alleged incapacitated person to be incapacitated and specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;
(e) State the name and address of the alleged incapacitated person’s attending or family physician, if known;
(f) State which rights enumerated in s. 744.3215 the alleged incapacitated person is incapable of exercising, to the best of petitioner’s knowledge. If the petitioner has insufficient experience to make such judgments, the petition must so state; and
(g) State the names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, specifying the dates of birth of any who are minors.
(3) A copy of any petition for appointment of guardian or emergency temporary guardian, if applicable, shall be filed with the petition to determine incapacity.

In other words, “adjudication” means full due process for the person who is alleged to be incapacitated and a complete judicial consideration of that allegation, with witnesses and testimony and argument, before a judicial decision is made. Borden v. Guardianship of Borden-Moore, 818 So.2d 604 (Fla. 5th DCA 2002).

An adjudication also results in the entry of a written judgment that states that the individual is legally incapacitated. This final judgment is then entered into the court record.

What Happens Once an Adjudication of Incapacity Has Been Made?

If there has been an adjudication of incapacity for the person who was appointed as personal representative of the estate, then the written final judgment entered in the adjudication proceeding is filed with the probate court creating an adversarial proceeding in the probate case.

At that point, the probate judge will conduct a hearing to remove the individual from his or her position and appoint a new, duly qualified personal representative, which is in the best interest of the estate.

To Learn About Other Adversarial Probate Proceedings, Please See Our Probate Litigation Page