If I do not implement a Durable Power of Attorney in the state of Florida and I become incapacitated, who by law will be able to act in such capacity?

If someone becomes incapacitated in Florida, and there is no durable power of attorney in place to allow for someone to provide care and supervision of the incapacitated person, the most likely result is that a family member, friend, or the State of Florida in the absence of a family member or friend, will seek a declaration from the probate court that the person does not have legal capacity, and a guardian will be appointed to provide for the care of the person and the management of the incapacitated person's assets. The first step is for the interested person to file a petition to determine incapacity.  The court appoints an attorney to act on behalf of the incapacitated person, and the court also appoints a panel consisting of two physicians and one social worker, to evaluate the incapacitated person.  If they determine the incapacitated person lacks "legal capacity" they make that recommendation to the probate judge.  The probate judge holds a hearing and takes evidence and testimony concerning the mental and physical capacity of the individual.  If the court determines after hearing the testimony and the evidence that the person lacks legal capacity then the court enters an order to that effect.  After the court determines the person lacks legal capacity, the court will appoint a legal guardian of the person and property of the incapacitated person. The same person may be appointed as both the guardian of the person and the property, or different individuals can be appointed - one to provide the care of the person, the other to provide the management of the assets. Upon appointment of the guardian, the guardian will make all decisions for the incapacitated person until the court determines otherwise.  The guardian must periodically report to the court what is the status of the incapacitated person, and must account at least annually for the assets of the incapacitated person. At the death of the incapacitated person, the guardian files a final report and is discharged from further responsibility other than to turn over the assets of the incapacitated person to the personal representative (executor) of the probate estate for the incapacitated person. You can learn more about guardianship law at our website:  www.thecolemanlawfirm.net/Florida_Guardianship_Law.php Randy Coleman