The Florida Bar
www.floridabar.org
The Florida Bar Journal
December, 2013 Volume 87, No. 10
Grandparents, Guns, and Guardianship: Incapacity and the Right to Bear Arms

by Carla-Michelle Adams

Page 48

The Bill of Rights is the touchstone for identification of constitutional guarantees because it enumerates the fundamental rights that are afforded to U.S. citizens. The framers of the Constitution codified the Bill of Rights in an effort to identify clearly the rights that would be deemed fundamental and inherent to our status as citizens. The U.S. Constitution promises all United States citizens unwavering rights that will be subjected to government interference only for a compelling state interest in a manner that constitutes the least restrictive means. The Second Amendment, which creates an individual privilege to bear arms, is explicitly guaranteed by the Bill of Rights, thereby establishing the right to bear arms as a fundamental right.1 The right to bear arms is reflective of the assertion that a well-regulated militia is necessary for the security of the free state, thereby the right of the people to keep and bear arms shall not be infringed.2 The Second Amendment, included in the Florida Constitution by operation of the Privileges and Immunities Clause of the 14th Amendment, protects the right to keep and bear arms, including handguns, for purpose of self-defense.

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court indicated that the right to bear arms is a constitutional guarantee, deeply rooted in American tradition. However, the Court further indicated that the right to bear arms does not exist as a constitutional guarantee without limitation or regulation. The right to bear arms, while identifiable as a fundamental right, is subjected to state limitation.3 As communicated by the Court in Heller, citizens of Florida are afforded the right to bear arms, limited by reasonable state regulation. Therefore, the right to bear arms is, in fact, susceptible to state regulation as long as the regulation is a reasonable restriction of the fundamental right.

In considering the right to bear arms as a fundamental right, the right to bear arms is implicated in the judicial inquiry in guardianship proceedings in which the court is required to make an assessment as to which rights will be retained by a ward upon a finding of incapacity. While guardianship is a legal tool that can be used to protect vulnerable individuals lacking mental capacity, guardianship can result in a dramatic reduction in fundamental rights.4 Furthermore, the reduction of fundamental rights in guardianship proceedings should also include extinguishment of the right to bear arms in an effort to ensure that the safety of both the ward and the public at large is maintained.

It is imperative that the Florida Legislature utilize the constitutional power with which it is vested to enact regulation regarding the retention of the right to bear arms in guardianship proceedings. While the right to bear arms is a fundamental right, it is not absolute. The right of the people is limited by the ability of the legislature to enact valid police regulations to promote the health, morals, safety, and general welfare of the people.5 Florida has failed to indicate whether the right to bear arms, meaning access or possession of a firearm, is a right that is extinguished upon the court determining that a ward lacks capacity. Despite the fact that the right to bear arms is a fundamental right, the Second Amendment should be included in the enumerated rights subject to removal upon a finding of incapacity in order to ensure the safety of the general public and the ward.6

Guardianship, Findings of Incapacity, and Regulation of Fundamental Rights
Guardianship is the creation of a relationship between the state and one person, the guardian, who is given the authority to make a decision for the incapacitated person, known as the ward.7 Guardianship proceedings are initiated when it is believed that a party no longer has capacity to make competent decisions regarding his or her person or property. The concept of guardianship is rooted in the doctrine of parens patriae, which is the idea that the state is charged with the responsibility of ensuring the protection of adults who are unable to provide for their own care.8 Therefore, the court has the authority and jurisdiction to appoint persons or agencies to function as guardians for the incapacitated ward.9 Florida permits the petitioning party to establish the rights that they believe the alleged incapacitated party is incapable of exercising. Therefore, the petition to determine incapacity is inclusive of the rights set forth in F.S. §744.3125 based on the petitioner’s assessment of the functional ability of the alleged incapacitated party. Partial or total incapacity must be established by clear and convincing evidence.10

There are classifications of guardianship that identify the extent of protection that must be afforded to the ward based on the court’s findings regarding their incapacity. The court can order plenary guardianship, the most common form of guardianship, which involves a complete adjudication of a person’s incapacity, incompetency, or disability. If the alleged incapacitated party is found to be completely without capacity or understanding to make or communicate a personal decision or to manage financial affairs, a plenary or estate guardian is appointed. Furthermore, the court can determine, based on the assessment of capacity, that guardianship of the person is the most appropriate measure, which means that the person is unable to give informed medical consent and make appropriate decisions about living in a residence or a facility. Additionally, he or she cannot make decisions regarding guardianship of property and financial affairs. A person is determined to be incapacitated in respect to those rights specified in the order that is inclusive of the exact nature and scope of the incapacity; the exact areas in which the person lacks capacity to make informed decisions about care and treatment services or to meet the essential requirements for her or his physical or mental health or safety; the specific legal disabilities to which the person is subject; and the specific rights that the person is incapable of exercising.

The regulation of fundamental rights, including the right to bear arms, is at issue in guardianship proceedings as the court is required to make determinations about the retention of fundamental rights by parties lacking capacity. Florida has enacted legislation to specify the rights both retained and subjected to possible renunciation if the court makes a finding of incapacity in a guardianship proceeding. F.S. §744.3215 explicitly outlines the rights that the alleged incapacitated party may be incapable of exercising. The statute identifies the rights that may be retained by the ward, as well as the rights that are subject to removal in the guardianship proceedings pursuant to the order of the court and issuance of letters of guardianship. Included among the rights enumerated in F.S. §744.3215 are several fundamental rights, such as the right to marry and the right to vote. The right to bear arms is not identified, per F.S. Ch. 744, as a right retained nor extinguished upon a finding of incapacity.

The silence of the Florida Legislature on the issue of whether the fundamental right to bear arms is extinguished upon a finding of incapacity must be rectified. It is imperative that Florida enact legislation that specifically addresses the right to bear arms as a right that can be subject to reasonable restriction, including extinguishment, upon the court determining that the ward lacks capacity in a guardianship proceeding. The court has jurisdiction, after a finding of mental incapacity, to determine whether the incapacitated party is capable of exercising authority and sole decisionmaking over issues concerning property. The decision of the court with respect to the retention of rights requires consideration of several factors, including balancing the potentially conflicting interests of permitting the ward to maintain some level of personal autonomy and ensuring that the safety of the ward is the paramount concern.

There are different approaches that the court may utilize to make a determination regarding capacity including the causal link or the functional approach. The causal link approach identifies the level of capacity by considering the mental ability of the alleged incapacitated person. 11 In terms of the application of the causal link for incapacity, once the incompetent party has been medically diagnosed with any one of a number of ailments, the court can order guardianship.12 The Uniform Probate Code utilizes the functional approach that “connects a mental or physical condition to cognitive functioning, such that the condition renders an individual incapable of understanding, communicating, or making responsible decisions.”13 It also avoids some of the negative connotation associated with the word “incompetent,” focusing instead on “capacity.”14 The act defines an incapacitated person as “an individual who, for reasons other than age, is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements of health, safety, or self-care, even with appropriate technological assistance.”15 The functional approach utilized by the Uniform Probate Code determines the functional limitations of the alleged incapacitated party by focusing on daily activities and identification of the parties’ level of need for assistance. In considering the evidence required for the court to make a judicial determination of capacity utilizing the functional approach, consideration of medical opinions or recommendations are relevant only so far as they shed light on one’s ability to perform life’s basic functions. 16 A mere diagnosis of some disability, without a resulting functional deficiency relating to one’s ability to care for oneself, is irrelevant.

In Florida, the court makes an assessment regarding the performance of specific functions by the alleged incapacitated party, which is reflective of the Uniform Probate Code functional model approach. Florida defines an “incapacitated person” as “a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.”17 In defining the terms identified in the statute, to manage property means “to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits and income.”18 With respect to essential health and safety requirements, the standard is defined as “those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.”19 In order to pass the threshold inquiry for health and safety, the alleged incapacitated person must be able “to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.”20

While Florida does not define capacity, the state’s statutory law defines what capacity is not.21 It is critical to note that the assessment of the capability of the alleged incapacitated party is not whether he or she is able to make wise decisions regarding his or her civil and legal rights.22 Rather, the inquiry is whether the person is incapable of exercising civil and legal rights at all.23 Guardianship affords incapacitated parties the protection of their person and property that they may require based on their development of specific deficiencies; however, it can function as an extreme hindrance in the exercise of fundamental rights. Despite the need for incapacitated parties to have protection afforded to them in the form of guardianship, it is critical that the court does not unnecessarily or arbitrarily strip them of their individual, fundamental rights in guardianship proceedings.24

Adjudication of Incapacity
Upon the judicial determination that clear and convincing evidence exists that the alleged incapacitated party does in fact lack capacity in regards to particular rights or all rights, the court must write an order determining capacity.25 The judicial determination of capacity applies only to the rights identified in the order.26 The order of the court must establish the following: the nature and scope of the incapacity; the exact areas in which the person lacks the capacity to make informed decisions about care and treatment services or to meet the essential requirements for his or her physical or mental health or safety; the specific legal disabilities to which the person is subject; and the specific rights the person is incapable of exercising.27

An adjudication of incapacity, whether limited or plenary, does not result in the loss of all rights. Letters of guardianship are issued to the guardian and “must specify whether the guardianship pertains to the person,...the property, or both” of the incapacitated person.28 The letters must state whether the guardianship is plenary or limited and, if limited, “whether or not and to what extent the guardian is authorized to act on behalf of the ward with regard to any advance directive previously executed by the ward.”29 Certain rights are always retained by the ward; these are enumerated specifically in F.S. §744.3215(1). Florida specifies the rights both retained and subjected to possible renunciation if the court makes a finding of incapacity in a guardianship proceeding. Therefore, the rights that may be retained by the ward, or subject to removal in the guardianship proceedings pursuant to the order of the court and issuance of letters of guardianship are enumerated in F.S. Ch. 744. Per the statutory requirement, the order determining incapacity must identify the rights that the ward is incapable of exercising, including the right to marry, personally apply for government benefits, or have a driver’s license. The right to bear arms is not provided for as a right the ward may be incapable of exercising. Therefore, the silence of the statute creates a presumption that the right to bear arms, as not specifically provided for, may inherently remain a fundamental right of the ward despite his or her status under the law. The Florida statute does not properly identify the fundamental right to bear arms as a right that the alleged incapacitated party may be incapable of exercising, thereby resulting in potentially fatal consequences.

Regulation of the Right to Bear Arms and Guardianship Proceedings
In the regulation of fundamental rights, the state is permitted to codify regulations in a fashion that serves a compelling state interest. The judicial standard of review to ensure that the regulation of the fundamental right meets the threshold of a compelling state interest is strict scrutiny. The strict scrutiny standard requires that there be a compelling state interest present in order for the state to interfere with the right to bear arms, and the inference by the state must be the least restrictive alternative available. As stated by Justice Douglas in Griswold v. Connecticut, 381 U.S. 479, 497 (U.S. 1965), in which a fundamental right is implicated, the state cannot merely show a rational relationship between the statute and the state purpose.30 According to Justice Douglas, “The law must be shown necessary, and not merely rationally related to, the accomplishment of a permissible state policy.”31 It is impermissible for the state to infringe upon a fundamental right unless the infringement is necessary to achieve a compelling purpose. The compelling interest identified by the state must not unnecessarily burden the constitutionally protected interest.32 The burden of the state under the strict scrutiny standard requires the state to show that in its pursuit of its stated objectives, it has selected a method that does not unnecessarily burden the constitutionally protected interest.33

Florida is permitted to utilize state police power to codify regulation in an effort to ensure public safety in a fashion that serves a compelling state interest. There is a compelling state interest in ensuring that legislation is provided that indicates that the right to bear arms is not a right retained following a determination of incapacity in guardianship proceedings. The regulation would function as a prohibition only to individuals found to lack capacity through the jurisdiction of the court in guardianship proceedings, and would not unnecessarily burden the right to bear arms because it would be narrowly tailored. The regulation is permissible as state police power, which permits the state to balance the fundamental right to bear arms with the need for public safety and the retention of the individual right.34

Conclusion
It is imperative that the right to bear arms is effectively removed by order of the court upon a finding of incapacity as a preventative measure for the ward and the community at large. Without legislation specifically indicating that the right to bear arms shall be subject to elimination upon a finding of incapacity, there is a question as to whether the Second Amendment right is subject to retention by the mentally incapacitated ward; the statute is ambiguous to this end. Florida must amend F.S. Ch. 744 to ensure that an incapacitated person’s right to bear arms is restricted both in the order finding incapacity and the letters of guardianship issued to the guardian of the ward so that the order specifically states that the ward’s right to bear arms is not retained. Furthermore, the order should prohibit the ward’s access and possession of firearms. The state has the power to regulate the Second Amendment in a manner that promotes health, safety, and welfare of the state’s citizens. Therefore, Florida should utilize police power to amend the guardianship statutes of the state that fail to identify the right to bear arms as a fundamental right that can or will be extinguished upon a finding of incapacity.


1 Reno v. Flores, 507 U.S. 292, 302 (1993).

2 U.S. Const. Amend. 2.

3 District of Columbia v. Heller, 554 U.S. 570 (2008).

4 Id.

5 Rinzler v. Carson, 262 So. 2d 661 (Fla. 1972).

6 Enrique Zamora & Stephanie Villavicencio, The Right to Bear Arms as a Removable Right in Incapacity Proceedings, 19 The Elder Advocate 11-12 (2011).

7 Naomi Karp & Erica F. Wood, Guardianship Monitoring: A National Survey of Court Practices, 37 Stetson L. Rev. 143, 146 (2007).

8 Mary Joy Quinn & Howard S. Krooks, Symposium: Third National Guardianship Summit: Standards of Excellence: Relationship Between the Guardian and the Court, 2012 Utah L. Rev. 1611, 1614 (2012).

9 See id.

10 Matthew Bender & Co., Inc., 1-14 Planning for the Elderly in Florida §14.12 (2012).

11 Mark D. Andrews, Note: The Elderly in Guardianship: A Crisis of Constitutional Proportions, 5 Elder L. J. 75, 102 (1997).

12 Id.

13 See id.

14 Id.

15 U.G.P.P.A. §102(5) (1997).

16 See Mark D. Andrews, Note: The Elderly in Guardianship: A Crisis of Constitutional Proportions, 5 Elder L.J. 75, 103 (1997).

17 Fla. Stat. §744.102 (12).

18 Fla. Stat. §744.102 (12)(a).

19 Fla. Stat. §744.102(12)(b).

20 Id.

21 McJunkin v. McJunkin, 896 So. 2d 962 (Fla. 2d DCA 2005).

22 Id.

23 Id.

24 In re McDonnell, 266 So. 2d 87 (Fla. 4th DCA 1972).

25 Id.

26 Id.

27 Id.

28 Mary Joy Quinn & Howard S. Krooks, The Relationship Between the Guardian and the Court, 2012 Utah L. Rev. 1611, 1624 (2012).

29 See id. at 1625.

30 Griswold v. Connecticut, 381 U.S. 479, 497(U.S. 1965).

31 Id.

32 Memorial Hospital v. Maricopa County, 415 U.S. 250, 263 (1974) (discussing that the state’s compelling interest must not unnecessarily burden the constitutionally protected interest).

33 Id. (discussing the state’s heavy burden in proving a compelling purpose for interference with a constitutionally protected right).

34 John Dwight Ingram & Alison Ann Ray, The Right(?) to Keep and Bear Arms, 27 N.M. L. Rev. 491, 508 (1997).


Carla-Michelle Adams, associate attorney at Newman Law Firm, P.A., was admitted to practice law in Florida in 2011. She received her B.A. from the College of New Rochelle, and J.D. from Florida Coastal School of Law. She will complete her master of laws degree in elder law and estate planning in May 2014 at Western New England University School of Law.

This column is submitted on behalf of the Elder Law Section, John Sanders Clardy III, chair, and Stephanie M. Villavicencio, editor.

[Revised: 11-26-2013]