RULE 5.550. PETITION TO DETERMINE INCAPACITY

(a) Contents. The petition to determine incapacity must be
verified by the petitioner and must state:

(1) the name, age, and present address of the petitioner
and the petitioner’s relationship to the alleged incapacitated person;

(2) the name, age, county of residence, and present
address of the alleged incapacitated person, and specify the primary
language spoken by the alleged incapacitated person, if known;

(3) that the petitioner believes the alleged incapacitated
person to be incapacitated, the facts on which the belief is based,
and the names and addresses of all persons known to the petitioner
who have knowledge of the facts through personal observation;
(4) the name and address of the alleged incapacitated
person’s attending or family physician, if known;

(5) which rights the alleged incapacitated person is
incapable of exercising to the best of the petitioner’s knowledge;
and, if the petitioner has insufficient experience to make that
judgment, the petitioner must so indicate;

(6) whether plenary or limited guardianship is sought
for the alleged incapacitated person;

(7) the names, relationships, and addresses of the next
of kin of the alleged incapacitated person, specifying the year of
birth of any who are minors, to the extent known to the petitioner;

(8) whether there are possible alternatives to
guardianship known to the petitioner, including, but not limited to,
trust agreements, powers of attorney, designations of health care
surrogates, other advance directives, and if the petitioner is seeking
a guardianship, an explanation as to why the alternatives are
insufficient to meet the needs of the alleged incapacitated person;
and

(9) whether the alleged incapacitated person uses
assistance to exercise the person’s rights, including, but not limited
to, supported decisionmaking, and if so, why the assistance is
inappropriate or insufficient to allow the person to independently
exercise the person’s rights.

(b) Notice.

(1) Contents. The notice of filing the petition to
determine incapacity must state:

(A) the time and place of the hearing to inquire
into the capacity of the alleged incapacitated person;

(B) that an attorney has been appointed to
represent the alleged incapacitated person; and
(C) that if the court determines that the alleged
incapacitated person is incapable of exercising any of the rights
enumerated in the petition a guardian may be appointed.

(2) Service on Alleged Incapacitated Person. The notice
and a copy of the petition to determine incapacity must be
personally served by an elisor appointed by the court, who may be
the court-appointed counsel for the alleged incapacitated person.
The elisor must read the notice and petition to the alleged
incapacitated person. A return of service must be filed by the elisor
certifying that the notice and petition have been served on and read
to the alleged incapacitated person. No responsive pleading is
required and no default may be entered for failure to file a
responsive pleading. The allegations of the petition are deemed
denied.

(3) Service on Others. A copy of the petition and the
notice must also be served on counsel for the alleged incapacitated
person, and on all next of kin.

(c) Verified Statement. An interested person may file a
verified statement that states:

(1) that the interested person has a good faith belief
that the alleged incapacitated person’s trust, trust amendment, or
durable power of attorney is invalid; and

(2) facts constituting a reasonable basis for that belief.

(d) Order. When an order determines that a person is
incapable of exercising delegable rights, it must specify whether
there is an alternative to guardianship that will sufficiently address
the problems of the incapacitated person.

(e) Reports.

(1) Filing. Each member of the examining committee
must file the examining committee member’s report with the clerk
of the court within 15 days after appointment.
(2) Service. Within 3 days after receipt of each
examining committee member’s report, the clerk must serve the
report on the petitioner and the attorney for the alleged
incapacitated person by e-mail or United States mail, and, on
service, must file a certificate of service in the incapacity
proceeding. The petitioner and the attorney for the alleged
incapacitated person must be served with all reports at least 10
days before the hearing on the petition, unless the reports are not
complete, in which case the petitioner and attorney for the alleged
incapacitated person may waive the 10-day requirement and
consent to the consideration of the report by the court at the
adjudicatory hearing. If service is not timely effectuated, the
petitioner or the alleged incapacitated person may move for a
continuance of the hearing.

(3) Objections. The petitioner and the alleged
incapacitated person may object to the introduction into evidence of
all or any portion of the examining committee members’ reports by
filing and serving a written objection on the other party no later
than 5 days before the adjudicatory hearing. The objection must
state the basis on which the challenge to admissibility is made. If
an objection is timely filed and served, the court must apply the
rules of evidence in determining the reports’ admissibility. For good
cause shown, the court may extend the time to file and serve the
written objection.

(f) Adjudicatory Hearing. On appointment of the examining
committee, the court must set the date on which the petition will be
heard. The adjudicatory hearing must be conducted within at least
10 days, which time period may be waived, but no more than 30
days after the filing of the last filed report of the examining
committee members, unless good cause is shown.

Committee Notes

Rule History

1980 Revision: Implements 1979 amendments to section
744.331, Florida Statutes.
1984 Revision: Change in title of rule. Editorial changes and
adds a provision for service of petition. Committee notes revised.

1988 Revision: Committee notes revised. Citation form
changes in committee notes.

1989 Revision by Ad Hoc Committee: The committee realized
that formal notice as defined in rule 5.040(a)(1) requires the
recipient of notice to file a responsive pleading within 20 days after
the service of the notice. The committee believed that to impose
such a requirement on the alleged incapacitated person would
contravene the legislative intent of the 1989 revisions to chapter
744, Florida Statutes. The committee observed that the time
required for appointment of mandatory appointed counsel might
render a responsive pleading within 20 days impossible for the
alleged incapacitated person. The committee concluded that,
procedurally, notice upon the alleged incapacitated person should
occur in the same manner as formal notice in rule 5.040, but the
required response under that rule should not be imposed upon the
alleged incapacitated person.

1991 Revision: Implements 1989 amendments to sections
744.3201 and 744.331, Florida Statutes, and 1990 technical
amendments.

1992 Revision: Citation form changes in committee notes.

2006 Revision: Subdivisions (c) and (d) added to incorporate
2006 amendment to section 744.441 and creation of section
744.462, Florida Statutes. Committee notes revised.

2014 Revision: Amends subdivision (a)(7) to conform with Fla.
R. Gen. Prac. & Jud. Admin. 2.425. Committee notes revised.

2016 Revision: Subdivision (a)(8) added to require the
disclosure of whether there are possible alternatives to
guardianship known to the petitioner. Committee notes revised.

2017 Revision: Adopts new subdivisions (e)(1)–(e)(3) to address
statutory changes in sections 744.331(3)(e), (3)(h), and (3)(i), Florida
Statutes, regarding filing, service, and objections to examining
committee members’ reports. Adopts new subdivision (f) to address
statutory changes regarding the timing of the adjudicatory hearing
in section 744.331(5)(a), Florida Statutes. Committee notes revised.

2020 Revision (September): Amends subdivision (a)(8) to
address the Judicial Management Council Guardianship
Workgroup Final Report dated June 15, 2018, Focus Area 1,
Recommendation 3, by requiring an explanation if there are less
restrictive alternatives to guardianship, but they are not sufficient
to meet the needs of the alleged incapacitated person. Committee
notes revised.

2020 Revision (December): Statutory references amended.

2024 Revision: Subdivision (b)(2) amended to conform to
section 744.331(1), Florida Statutes. Committee notes revised.

2024 Revision: New subdivision (a)(9) adopted to conform to
section 744.3201(2)(d), Florida Statutes. Committee notes revised.

Statutory References

§ 709.2104, Fla. Stat. Durable power of attorney.

§ 709.2109, Fla. Stat. Termination or suspension of power of
attorney or agent’s authority.

§ 744.1012, Fla. Stat. Legislative intent.

§ 744.104, Fla. Stat. Verification of documents.

§ 744.3045, Fla. Stat. Preneed guardian.

§ 744.3115, Fla. Stat. Advance directives for health care.

§ 744.3201, Fla. Stat. Petition to determine incapacity.

§ 744.331, Fla. Stat. Procedures to determine incapacity.

§ 744.3371, Fla. Stat. Notice of petition for appointment of
guardian and hearing.
§ 744.441(1)(k), Fla. Stat. Powers of guardian upon court
approval.

§ 744.462, Fla. Stat. Determination regarding alternatives to
guardianship.

§ 765.102, Fla. Stat. Legislative intent and findings.

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob. R. 5.040(a)(3) Notice.

Fla. Prob. R. 5.800(a) Application of revised chapter 744 to
existing guardianships.

Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
filing of sensitive information.