Cornell Law helps us to define legal incompetent as
n. 1. Lack of legal ability to do something, especially to testify or stand trial. Also known as “incompetency.” May be caused by various types of disqualification, inability, or unfitness. Someone who is judged incompetent by means of a formal hearing may have a guardian appointed by the court.
At issue here is, if a legally incompetent person has to be served how do you execute the service without running the risk of getting quashed.
Let’s say that there’s a mentally competent individual, that is being forced into foreclosure. In most states, the defendant, in this case, an incompetent person, must be served a copy of the complaint in a judicial foreclosure. What are your options (or our options) in this service?
The answer is not much different from serving a minor.
In Florida, service of process is complete on serving two copies to the person who has care of custody of the incompetent person. If there’s a legal guardian appointed, the legal guardian can be served.
Here is a copy of the Florida Statues covering service of process on an incompetent.
48.042 Service on incompetent.—
(1) Process against an incompetent shall be served:
(a) By serving two copies of the process to the person who has care or custody of the incompetent or, when there is a legal guardian appointed for the incompetent, by serving the guardian as provided in s. 48.031.
(b) By serving the guardian ad litem or other person, if one is appointed by the court to represent the incompetent. Service on the guardian ad litem is unnecessary when he or she appears voluntarily or when the court orders the appearance without service of process on him or her.
(2) In all cases heretofore adjudicated in which process was served on an incompetent as prescribed by any law heretofore existing, the service was lawfully made, and no proceeding shall be declared irregular or illegal if a guardian ad litem appeared for the incompetent.
