Just because a person makes bad decisions, doesn’t mean he should be declared incapacitated and have all his rights stripped away

McJunkin v. McJunkin, 30 Fla. L. Weekly D840 (Fla. 2 DCA March 30, 2005) (Trial Court Reversed) In March 2001 the ward’s two sons had him declared incapacitated at age 79 because he apparently wasn’t managing his money as prudently as he could have. Two years later, in October 2003, the ward filed a “Suggestion of Capacity” seeking to have his rights restored. Even though the medical evidence presented in 2003 clearly showed that the ward was not incapacitated, and it was doubtful that he was ever incapacitated, Highlands County Circuit Court Judge J. David Langford ruled against him, declining to restore his rights. In reversing the trial court, the Second DCA makes clear that attorneys representing wards need to be advocates . . . not social workers, protecting individuals from, among other dangers, well intentioned relatives and courts guided by misplaced paternalism. The Second DCA first commented on the apparent lack of due process protections afforded to the ward the first time around in 2001:

[W]e are troubled by the apparent lack of due process that was afforded to [the ward] in [the 2001] proceeding, including the failure of the trial court to advise him of the right to choose his own attorney and the apparent failure of his attorney ad litem to act as an advocate for him in those proceedings or during the guardianship.

The Second DCA then goes on to point out that under Florida’s current Guardianship Law (Chapter 744), before a person’s rights are taken away, the individual must be incapable of exercising those rights at all, “whether wisely or otherwise.” Well intentioned paternalism is not reason enough to declare a person legally incapacitated.

[I]n our present day paternalistic society we must take care that in our zeal for protecting those who cannot protect themselves we do not unnecessarily deprive them of some rather precious individual rights. . . . [A]bsent some paternalistic notion that [the ward] might make some decisions that could harm him, the doctors that examined him found that he should be restored to full capacity. Accordingly, it was error for the trial court to do otherwise.