“ Understanding Florida ’ s Choice: ‘ Incapacitated ’ vs. ‘ Incompetent ’” By Pamela Kemper
When determining the need for guardianship, the terms "incapacitated" and "incompetent" are often used interchangeably to describe individuals who require assistance in managing their personal and financial affairs. However, in Florida, the legal system has made a deliberate choice to establish an individual as "incapacitated" rather than "incompetent." The following explores the reasons behind this distinction and sheds light on the underlying principles guid- ing Florida's approach. Emphasizing Individuality and Rights: By using the term "incapacitated," Florida seeks to emphasize the unique circumstances and needs of each individual. It recognizes that a person's capacity may vary across different areas of their life, such as decision - making, managing finances, or caring for themselves. This ap- proach respects the inherent dignity and individuality of the person, recognizing that they may require support in specific aspects of their life without being entirely incompetent. Focus on Functional Abilities: The choice of "incapacitated" over "incompetent" reflects a focus on functional abilities rather than a global assessment of someone's overall competence. Florida's guardianship system aims to determine the specific areas where an individual requires assistance or protection, ra- ther than applying a broad label of incompetence that may not accurately capture their capa- bilities. This approach allows for a more tailored and nuanced evaluation, ensuring that the support provided aligns with the person's specific needs.
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