Service on Incompetent

by: Johnelle Rodriguez

What comes to mind when you think of the word “incompetent?”

According to dictionary.com, “incompetent” has some of the following definitions:

• Lacking qualification or ability
• Incapable
• Being unable or legally unqualified to perform specified acts or to be held legally responsible for such acts (law)
• A person lacking power to act with legal effectiveness (law)
• A mentally deficient person

May is Mental Health Awareness Month.

Although service of process and investigations deal with legalities, mental health does play a role in executing these services. To be more specific, if someone is declared “incompetent,” special measures must be taken when serving documents on the individual.

But let’s back up a little.

First off, the court is the only entity that can declare an individual incompetent. This declaration is a medical opinion based on someone’s medical history, mental health issues, or physical health issues. And this is usually determined by a doctor.

“Your husband, your wife, your sister, your brother, your aunt, or your uncle can’t declare you an incompetent without a legal proceeding,” Bob Fischer, president of Professional Process Servers & Investigations, Inc., explains.

When it comes to court cases, anyone has the potential to be involved in one. We have served people who have been deemed incompetent, and they’re usually the defendants in a case. Sometimes, the attorneys for the plaintiff don’t know of the person’s condition until the process server actually goes out and tries to serve him or her. All this being said, there are specific ways to handle these services.

Guardians ad litem are those who sort of act as a voice for the incompetent, in general terms.

“The guardian ad litem is like a power of attorney, in a really broad sense,” Bob says.

They are usually appointed by the court for someone who is declared incompetent and has to be involved in a court proceeding. They usually have the best interest of those they are representing at heart. In order to become a guardian ad litem, you must be appointed by the court by going through a special procedure, proving you can handle the different legal practices for an incompetent person.

Florida Statute 48.042 outlines how these types of services should be handled. As a process server, when you know the individual is incompetent, you must serve under this statute. Two copies of the documents must be served on the person who has control over the incompetent, whether it’s a family member, a hospital administrator, a mental health hospital administrator, or a guardian ad litem. However, a process server who attempts to serve an individual may not have any idea that the person is incompetent. The address the server attempts could be a facility where the person is being kept or a residence, where the person lives. When the server is advised of the person’s condition, this must be verified by documentation provided by the court.

As in any situation, the server must use his or her discretion when seeking to obtain service in a hospital or a mental facility. A process server should know not to just go in and try to find the person and serve the documents at his or her bedside.

Bob says that when he goes to the facility, he makes contact with one of the directors, whether it’s the director of nursing or someone in the facility who has control. He explains why he’s there and the documents he has. Usually, the administrator can be served. Bob typically tries to determine the person’s condition and reason for being at the facility before he tries to serve the documents.

Sometimes, people will be in the hospital to try and avoid service, which has happened to Bob several times. One time, a person faked a heart attack and had the ambulance come and take him to the hospital. Luckily, a neighbor knew what hospital he was in. So Bob found this out, took matters into his own hands and went to the hospital and contacted the local security official. He explained what was going on, and the security laughed a little and said the guy he was looking for did not have a heart attack. He told Bob what bed he was in and where he was located in the hospital. As soon as Bob served him, he got up out the bed and walked out of the hospital, cursing and screaming and hollering at Bob.

“Be very careful,” Bob advises. “Tread very carefully. It’s a very thin line.”

If someone has a real problem, you don’t want to just walk into the hospital and try to serve him or her; the service can potentially put the individual over the edge. But if he or she has not been declared incompetent and is in a hospital, the server can go up to the individual’s hospital room and try to serve the documents.

Say the servee has a heart condition, for instance. Bob would contact the head nurse at the station and make a determination of the severity of the person’s condition, such as if something like serving process could trigger an episode. Therefore, being careful is key. Once he discovers this information, he usually goes back to the client to confirm what should be done next.

For additional information on serving documents in hospitals, check out the following link: How to Serve Papers in a Hospital.

Some mental health facilities will not grant servers access. Some rehabilitation facilities, such as drug rehab and substance abuse rehab centers will not let servers in, either. At times, they won’t even confirm or deny if the person being sought is there. And this is legal, especially if it’s a Federal Class A facility.

“You’re not gonna get anywhere near that individual,” Bob warns.

With halfway houses and some of these facilities, it’s up to the process server to use some ingenuity to get people served. For instance, if it’s an outdoor facility with people hanging out on the street corner or out in front of their apartments, it would be smart for the server to go up and ask for the person.

Grow a heart.



That’s the advice Bob has for some attorneys who just don’t care. Some want the server to go in and deliver documents, regardless of the servee’s medical condition or reason for being in the hospital, when there are other ways to handle the matter.