Incapacity Issues when Owning Florida Real Estate



A person is considered incapacitated when they have lost their ability to make important decisions, including those related to their assets or property.

What happens to your Florida property if you become mentally incapacitated? Your loved ones may encounter significant problems when trying to sell or transfer your property.

Under Florida law, the procedure called “guardianship” may be required in order to determine who can legally undertake the duty and responsibility to make decisions regarding an incapacitated person’s property and assets.

Determining Incapacity

In order to be declared incapacitated according to Florida law, the Florida Court will appoint an Examining Committee consisting of three members. One of the three must be a psychiatrist or doctor and the other two may be any of the following: psychologist, gerontologist, another psychiatrist, a registered nurse, nurse practitioner, licensed social worker or other qualified professional. Each person on the committee must conduct a comprehensive examination of the person. The committee must then file a comprehensive report determining the person’s ability (or lack thereof) to his/her rights in society. For example: the right to marry, the right to vote and the right to have a driver’s license. The Court will then set an adjudicatory hearing where the judge will determine the exact scope of the incapacity of the person in question.

Guardianship Procedure

Only after the person has been deemed incapacitated by the Court may guardianship begin. Throughout this procedure, the incapacitated individual is called the “ward.” Any person whom the Court considers fit and qualified to act as guardian may be appointed, however it will give preference to someone who is related by blood or marriage, has relevant educational or professional experience, or who has the capacity to manage the finances of the ward.

The potential guardian must first submit an application to the Court listing their qualifications. The Court may then require the guardian to submit to an investigation of their credit history and a full background screening, at the guardian’s own expense. The guardian will also undergo fingerprinting in order to complete their criminal history record.

Once appointed, the guardian must receive a minimum of eight hours of instruction and training through a court approved course, learning the legal duties and responsibilities of the guardian as well as the preparation of habilitation plans, annual guardianship reports and financial accounting. These expenses may be paid out of the ward’s estate if the Court so approves.

What about your Canadian power of attorney document?

Canadians often wonder if this can all be avoided by the use of their Quebec incapacity mandates or Canadian powers of attorney. Very often these documents will not be accepted by Florida title companies to transfer title of your Florida property. Under the Florida statutes chapter 744, very strict guidelines are given as to what will create a valid power of attorney. For example, there are certain words that must be used in the document to indicate that the power of attorney will not be affected by subsequent incapacity, thus creating a durable power of attorney. There are also certain formalities regarding witnesses and notarizing the documents that are different under Florida law. If these formalities are not complied with, the document will be invalid.

Are there any shortcuts for Quebec residents?

If you are a Quebec resident owning property in Florida, it is more likely than not that you own the bulk of your assets back at home. Therefore, it is generally recommended that your domestic planning include a Quebec incapacity mandate.
Faced with your mental incapacity, your loved ones can homologate the document with the Quebec court in order for the guardian (referred to in Quebec as the “mandatary”) to be appointed.

Once the Quebec judgment has been rendered, your mandatary can submit to the Florida court a petition for the appointment of a guardian for a non-resident ward. Attached to this petition will be a certified copy of the following documents: the Quebec judgment, the medical opinion determining incapacity, and the psychosocial report. If all goes smoothly, the Florida court will then send back the judge’s order appointing the mandatary as Florida guardian.

Can this ALL be avoided?

The Florida Courts will only turn to the guardianship procedure when no simpler alternative is available. By consulting with one of our cross-border attorneys, you can avoid guardianship altogether by creating and executing documents governed by Florida law such as a durable power of attorney, a Florida designation of healthcare surrogate or a cross border trust. The language in these documents will arrange for this unfortunate situation in advance by giving your loved ones the right to transfer or sell your Florida property, should you become incapacitated.

The information contained herein is for informational purposes only, and is not legal advice or a substitute for legal counsel. It is not intended to be attorney advertising or solicitation. If you have a legal question, please consult with a licensed attorney.