By: David M.Garten, Esq.

ARTICLE: Deposing An Incapacitated Person

As a prerequisite to deposing an incapacitated person (or an alleged incapacitated

person), it may be necessary to: (a) have a hearing to determine whether the witness is

disqualified from testifying, and/or (b) submit written deposition questions to the witness.

A witness is presumed competent to testify until the contrary is established. See §90.601,

Fla. Stat. (every person is competent to be a witness, except as otherwise provided by

statute);Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000); Hawk v. State, 718 So. 2d 159

(Fla. 1998).  Even a person who has been declared insane can be found competent to

testify. SeeBelcher v. Johnson, 834 So. 2d 422 (2nd DCA 2003),  citing Fla. Power &

Light Co. v.Robinson, 68 So. 2d 406 (Fla. 1953).  The witness’s unreliability goes to his