Florida Statutes
Fla. Stat. § 744.3215 (2025)
Rights of persons determined incapacitated.
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744.3215 Rights of persons determined incapacitated.—
(1) A person who has been determined to be incapacitated retains the right:
(a) To have an annual review of the guardianship report and plan.
(b) To have continuing review of the need for restriction of his or her rights.
(c) To be restored to capacity at the earliest possible time.
(d) To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
(e) To have a qualified guardian.
(f) To remain as independent as possible, including having his or her preference as to place and standard of living honored, either as he or she expressed or demonstrated his or her preference prior to the determination of his or her incapacity or as he or she currently expresses his or her preference, insofar as such request is reasonable.
(g) To be properly educated.
(h) To receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.
(i) To receive services and rehabilitation necessary to maximize the quality of life.
(j) To be free from discrimination because of his or her incapacity.
(k) To have access to the courts.
(l) To counsel.
(m) To receive visitors and communicate with others.
(n) To notice of all proceedings related to determination of capacity and guardianship, unless the court finds the incapacitated person lacks the ability to comprehend the notice.
(o) To privacy.
(2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right:
(a) To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.
(b) To vote.
(c) To personally apply for government benefits.
(d) To have a driver license.
(e) To travel.
(f) To seek or retain employment.
(3) Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right:
(a) To contract.
(b) To sue and defend lawsuits.
(c) To apply for government benefits.
(d) To manage property or to make any gift or disposition of property.
(e) To determine his or her residence.
(f) To make health care decisions as defined in s. 765.101. If this right is removed from a person, then court approval for the withdrawal or withholding of life-prolonging procedures, as defined in s. 765.101, is required under s. 744.4431.
(g) To make decisions about his or her social environment or other social aspects of his or her life.
(4) Without first obtaining specific authority from the court, as described in s. 744.3725, a guardian may not:
(a) Commit the ward to a facility, institution, or licensed service provider without formal placement proceeding, pursuant to chapter 393, chapter 394, or chapter 397.
(b) Consent on behalf of the ward to the performance on the ward of any experimental biomedical or behavioral procedure or to the participation by the ward in any biomedical or behavioral experiment. The court may permit such performance or participation only if:
1. It is of direct benefit to, and is intended to preserve the life of or prevent serious impairment to the mental or physical health of the ward; or
2. It is intended to assist the ward to develop or regain his or her abilities.
(c) Initiate a petition for dissolution of marriage for the ward.
(d) Consent on behalf of the ward to termination of the ward’s parental rights.
(e) Consent on behalf of the ward to the performance of a sterilization or abortion procedure on the ward.
History.—s. 34, ch. 89-96; s. 19, ch. 90-271; s. 36, ch. 93-39; s. 13, ch. 94-183; s. 44, ch. 96-169; s. 6, ch. 96-354; s. 1782, ch. 97-102; s. 10, ch. 2006-178; s. 5, ch. 2017-16; s. 2, ch. 2023-287.
Notes of Decisions
Cited in 42
cases (1 in the last 5 years), 1989–2023 · leading case: Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017).
Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017). “2d DCA 1992) (denying attorneys’ fees and holding that, because the ward’s right to contract had been removed, the ward “had no power to contract with [counsel] to represent her” even though section 744.3215, Florida Statutes, gives incapacitated persons the right to counsel).”
Glenda Martinez Smith v. J. Alan Smith, 199 So. 3d 911 (Fla. 4th DCA 2016). “§ 744.3215, Fla. Stat. (2013). With respect to marriage, subsection (2)(a) provides: (2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right: (a) To marry.”
Godwin v. State, 593 So. 2d 211 (Fla. 1992). “§ 744.3215(2), Fla. Stat. (Supp. 1990). Likewise, a court may delegate to someone else the authority to make personal and business decisions for an incompetent person; this includes the right to enter contracts, the right to sue and be sued, the right to manage property, the…”
Scannavino v. Florida Dep't of Corr., 242 F.R.D. 662 (M.D. Fla. 2007). “” Fla. Stat. § 744.3215 (3)(b) (2006). Although Section 744.”
Glenda Martinez Smith v. J. Alan Smith, 195 So. 3d 416 (Fla. 4th DCA 2016). “Section 744.3215(2), Florida Statutes (2013), which requires court approval of a marriage of a ward, whose right to contract has been removed but whose right to marry has not, affects the rights of wards of all types, although it particularly affects the elderly.”
In Re Guardianship of Sapp, 868 So. 2d 687 (Fla. 2d DCA 2004). “Depending upon the extent of the ward's incapacity, those rights may include: (1) At least in some instances, to apply for government benefits, section 744.3215(3)(c); (2) To determine the ward's residence, section 744.”
In Re Guardianship of JDS, 864 So. 2d 534 (Fla. 5th DCA 2004). “Section 744.3215(4), Florida Statutes, states in pertinent part: Without first obtaining specific authority from the court, as described in s.”
In Re Guardianship of Bockmuller, 602 So. 2d 608 (Fla. 2d DCA 1992). “Appellee contends that it is entitled to the award of fees because under section 744.3215(1)( l ), Florida Statutes (1989), Mary retained the right to counsel and she had contracted with Mr.”
In Re Amendments to the Florida Prob. Rules, 584 So. 2d 964 (Fla. 1991). “Statutory References § 744.3215, Fla. Stat. Rights of persons determined incapacitated.”
Vaughan v. Guardianship of Vaughan, 648 So. 2d 193 (Fla. 5th DCA 1994). “052 and section 744.3215, when read together, are ambiguous and vague, and thus should be interpreted to preclude a guardian, committee, or next friend from bringing an action for divorce on behalf of an incompetent person.”
LeWinter v. Guardianship of LeWinter, 606 So. 2d 387 (Fla. 3d DCA 1992). “See § 744.3215(2), (3), Fla. Stat. (1991). Attached to the report were two addendums from Dr.”
Bivins v. Rogers, 147 So. 3d 549 (Fla. 4th DCA 2014). “See § 744.3215(3)(e), Fla. Stat. (2012). A guardian must obtain court approval, however, before removing the ward from the state or to another non-adjacent county.”
— 744.3215(1) — 3 cases
In Re Guardianship of Bockmuller, 602 So. 2d 608 (Fla. 2d DCA 1992). “Appellee contends that it is entitled to the award of fees because under section 744.3215(1)( l ), Florida Statutes (1989), Mary retained the right to counsel and she had contracted with Mr.”
Auxier v. Jerome Golden Ctr. for Behavioral Health, 85 So. 3d 1164 (Fla. 4th DCA 2012).
— 744.3215(1)(L) — 1 case
In re Guardianship of Anderson, 47 Fla. Supp. 2d 176 (Fla. Cir. Ct. 1991).
— 744.3215(1)(Z) — 1 case
Salmon v. Harris, Barrett, Mann & Dew, P.A., 602 So. 2d 608 (Fla. 2d DCA 1992).
— 744.3215(1)(b) — 1 case
Vick v. Bailey, 777 So. 2d 1005 (Fla. 2d DCA 2000).
— 744.3215(1)(d) — 1 case
Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017). “2d DCA 1992) (denying attorneys’ fees and holding that, because the ward’s right to contract had been removed, the ward “had no power to contract with [counsel] to represent her” even though section 744.3215, Florida Statutes, gives incapacitated persons the right to counsel).”
— 744.3215(1)(k) — 1 case
In Re Guardianship of King, 862 So. 2d 869 (Fla. 2d DCA 2003).
— 744.3215(1)(l) — 1 case
Jacobsen v. Busko, 262 So. 3d 238 (Fla. 3d DCA 2018).
— 744.3215(1)(m) — 1 case
Kas v. Ret, 914 So. 2d 1056 (Fla. 2d DCA 2005).
— 744.3215(2) — 5 cases
Godwin v. State, 593 So. 2d 211 (Fla. 1992). “§ 744.3215(2), Fla. Stat. (Supp. 1990). Likewise, a court may delegate to someone else the authority to make personal and business decisions for an incompetent person; this includes the right to enter contracts, the right to sue and be sued, the right to manage property, the…”
Glenda Martinez Smith v. J. Alan Smith, 195 So. 3d 416 (Fla. 4th DCA 2016). “Section 744.3215(2), Florida Statutes (2013), which requires court approval of a marriage of a ward, whose right to contract has been removed but whose right to marry has not, affects the rights of wards of all types, although it particularly affects the elderly.”
LeWinter v. Guardianship of LeWinter, 606 So. 2d 387 (Fla. 3d DCA 1992). “See § 744.3215(2), (3), Fla. Stat. (1991). Attached to the report were two addendums from Dr.”
Silveira v. Guardianship of Quiroga, 156 So. 3d 574 (Fla. 3d DCA 2015).
Guardianship of Rawl v. Rawl, 133 So. 3d 1179 (Fla. 2d DCA 2014).
— 744.3215(2)(a) — 4 cases
Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017). “2d DCA 1992) (denying attorneys’ fees and holding that, because the ward’s right to contract had been removed, the ward “had no power to contract with [counsel] to represent her” even though section 744.3215, Florida Statutes, gives incapacitated persons the right to counsel).”
Glenda Martinez Smith v. J. Alan Smith, 199 So. 3d 911 (Fla. 4th DCA 2016). “§ 744.3215, Fla. Stat. (2013). With respect to marriage, subsection (2)(a) provides: (2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right: (a) To marry.”
Glenda Martinez Smith v. J. Alan Smith, 195 So. 3d 416 (Fla. 4th DCA 2016). “Section 744.3215(2), Florida Statutes (2013), which requires court approval of a marriage of a ward, whose right to contract has been removed but whose right to marry has not, affects the rights of wards of all types, although it particularly affects the elderly.”
Hassoun v. Reliastar Life Ins. Co., 288 F. Supp. 3d 1334 (S.D. Fla. 2018).
— 744.3215(2)(b) — 1 case
Godwin v. State, 593 So. 2d 211 (Fla. 1992). “§ 744.3215(2), Fla. Stat. (Supp. 1990). Likewise, a court may delegate to someone else the authority to make personal and business decisions for an incompetent person; this includes the right to enter contracts, the right to sue and be sued, the right to manage property, the…”
— 744.3215(3) — 1 case
Godwin v. State, 593 So. 2d 211 (Fla. 1992). “§ 744.3215(2), Fla. Stat. (Supp. 1990). Likewise, a court may delegate to someone else the authority to make personal and business decisions for an incompetent person; this includes the right to enter contracts, the right to sue and be sued, the right to manage property, the…”
— 744.3215(3)(a) — 3 cases
In Re Guardianship of Bockmuller, 602 So. 2d 608 (Fla. 2d DCA 1992). “Appellee contends that it is entitled to the award of fees because under section 744.3215(1)( l ), Florida Statutes (1989), Mary retained the right to counsel and she had contracted with Mr.”
Smith v. Lynch, 821 So. 2d 1197 (Fla. 4th DCA 2002).
Salmon v. Harris, Barrett, Mann & Dew, P.A., 602 So. 2d 608 (Fla. 2d DCA 1992).
— 744.3215(3)(b) — 1 case
Scannavino v. Florida Dep't of Corr., 242 F.R.D. 662 (M.D. Fla. 2007). “” Fla. Stat. § 744.3215 (3)(b) (2006). Although Section 744.”
— 744.3215(3)(c) — 2 cases
In Re Guardianship of Sapp, 868 So. 2d 687 (Fla. 2d DCA 2004). “Depending upon the extent of the ward's incapacity, those rights may include: (1) At least in some instances, to apply for government benefits, section 744.3215(3)(c); (2) To determine the ward's residence, section 744.”
O'Hare v. Hamric, 868 So. 2d 687 (Fla. 2d DCA 2004).
— 744.3215(3)(d) — 1 case
LeWinter v. Guardianship of LeWinter, 606 So. 2d 387 (Fla. 3d DCA 1992). “See § 744.3215(2), (3), Fla. Stat. (1991). Attached to the report were two addendums from Dr.”
— 744.3215(3)(e) — 4 cases
Bivins v. Rogers, 147 So. 3d 549 (Fla. 4th DCA 2014). “See § 744.3215(3)(e), Fla. Stat. (2012). A guardian must obtain court approval, however, before removing the ward from the state or to another non-adjacent county.”
In Re Guardianship of Sapp, 868 So. 2d 687 (Fla. 2d DCA 2004). “Depending upon the extent of the ward's incapacity, those rights may include: (1) At least in some instances, to apply for government benefits, section 744.3215(3)(c); (2) To determine the ward's residence, section 744.”
Handley v. Dennis, 642 So. 2d 115 (Fla. 1st DCA 1994).
O'Hare v. Hamric, 868 So. 2d 687 (Fla. 2d DCA 2004).
— 744.3215(3)(f) — 2 cases
In Re Guardianship of Sapp, 868 So. 2d 687 (Fla. 2d DCA 2004). “Depending upon the extent of the ward's incapacity, those rights may include: (1) At least in some instances, to apply for government benefits, section 744.3215(3)(c); (2) To determine the ward's residence, section 744.”
O'Hare v. Hamric, 868 So. 2d 687 (Fla. 2d DCA 2004).
— 744.3215(3)(g) — 2 cases
In Re Guardianship of Sapp, 868 So. 2d 687 (Fla. 2d DCA 2004). “Depending upon the extent of the ward's incapacity, those rights may include: (1) At least in some instances, to apply for government benefits, section 744.3215(3)(c); (2) To determine the ward's residence, section 744.”
O'Hare v. Hamric, 868 So. 2d 687 (Fla. 2d DCA 2004).
— 744.3215(4) — 8 cases
Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017). “2d DCA 1992) (denying attorneys’ fees and holding that, because the ward’s right to contract had been removed, the ward “had no power to contract with [counsel] to represent her” even though section 744.3215, Florida Statutes, gives incapacitated persons the right to counsel).”
In Re Guardianship of JDS, 864 So. 2d 534 (Fla. 5th DCA 2004). “Section 744.3215(4), Florida Statutes, states in pertinent part: Without first obtaining specific authority from the court, as described in s.”
In Re Amend. to Florida Prob. Rules, 986 So. 2d 576 (Fla. 2008).
Wixtrom v. Dep't of Child. & Families, 864 So. 2d 534 (Fla. 5th DCA 2004).
Lefebvre v. North Broward Hosp. Dist., 566 So. 2d 568 (Fla. 4th DCA 1990).
— 744.3215(4)(a) — 1 case
Auxier v. Jerome Golden Ctr. for Behavioral Health, 85 So. 3d 1164 (Fla. 4th DCA 2012).
— 744.3215(4)(c) — 2 cases
Vaughan v. Guardianship of Vaughan, 648 So. 2d 193 (Fla. 5th DCA 1994). “052 and section 744.3215, when read together, are ambiguous and vague, and thus should be interpreted to preclude a guardian, committee, or next friend from bringing an action for divorce on behalf of an incompetent person.”
Mogul v. Mogul, 730 So. 2d 1287 (Fla. 5th DCA 1999).
— 744.3215(4)(e) — 3 cases
In Re Guardianship of JDS, 864 So. 2d 534 (Fla. 5th DCA 2004). “Section 744.3215(4), Florida Statutes, states in pertinent part: Without first obtaining specific authority from the court, as described in s.”
Wixtrom v. Dep't of Child. & Families, 864 So. 2d 534 (Fla. 5th DCA 2004).
Lefebvre v. North Broward Hosp. Dist., 566 So. 2d 568 (Fla. 4th DCA 1990).
— 744.3215(a) — 1 case
— 744.3215(l)(d) — 1 case
Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017). “2d DCA 1992) (denying attorneys’ fees and holding that, because the ward’s right to contract had been removed, the ward “had no power to contract with [counsel] to represent her” even though section 744.3215, Florida Statutes, gives incapacitated persons the right to counsel).”
— 744.3215(l)(m) — 1 case
K.A.S. v. R.E.T., 914 So. 2d 1056 (Fla. 2d DCA 2005).
— 744.3215(l)(o) — 1 case
Glatthar v. Hoequist, 600 So. 2d 1205 (Fla. 5th DCA 1992).
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