From the Blog

Can incapacitated individuals testify at a deposition?

One of the most common methods of discovery is conducting depositions. A deposition is a witness’ out-of-court sworn testimony, which enables attorneys to know in advance what a witness will say at trial. The testimony is often used at trial or in preparation for trial.

In general, depositions can be given by any person involved in the case. However, it is important to note that there are some witnesses that are disqualified from testifying, which may include incapacitated individuals.

What kinds of witnesses can testify?

A witness is considered competent — and, thus, able to testify — unless the court determines otherwise.

Competency is measured by whether the “prospective witness has ‘sufficient intelligence to understand the nature of an oath and to give a reasonable, accurate account of what he has seen and heard, vis-a-vis the subject about which he is interrogated,’” Kaelin v. State, 410 So. 2d 1355 citing People v. Parks, 41 N.Y.2d 36, 390 N.Y.S.2d 848, 359 N.E.2d 358 (1976).

The level of an individual’s competency is also established when a witness has sufficient understanding to comprehend the obligations of the oath and is capable of providing insight on a correct amount of the matters, which the witness has seen or heard relative to the question at issue. Kaelin v. State.

Who is unable to testify?

The court has often been faced with the issue of deciding whether or not an individual is competent enough to testify. This is often the case when a prospective witness is elderly or suffering from certain mental or physical illnesses. 

Generally, the court allows for an individual to provide testimony as a witness, unless, such individual is (1) incapable of expressing himself or herself concerning the matter in such a manner as to be understood, either directly or through interpretation by one who can understand; the individual is (2) incapable of understanding the duty of a witness to tell the truth; or that the individual (3) is unable to perceive and remember events. Fla. Stat. 90.603; Rutherford v. Moore, 774 So. 2d 637.

Are individuals in a guardianship able to be offer depositions?

There are no separate laws that govern individuals in a guardianship and their ability to offer a deposition.

Instead, the court has held that an individual cannot be disqualified to testify merely because they have been found to be legally incapacitated for the purposes of a guardianship proceeding. Belcher v. Johnson, 834 So. 2d 422 (Fla. 2nd DCA 2003).

Moreover, the competency of an individual in a guardianship must be considered for the purposes of testifying. This is because the court has found that even a person who has been declared insane can be found competent to testify. Fla. Power & Light Co. v. Robinson, 68 So.2d 406, 413 (Fla.1953).

Thus, individuals in a guardianship that have been declared legally incapacitated for the purposes of a guardianship may still be found competent enough to offer testimony during a deposition.


Depositions are a foundational aspect of the discovery process in a case. Although depositions can be given by any person involved in the case, the court has often found that certain types of individuals are disqualified from offering such testimony.

Some people might assume that individuals in a guardianship would automatically be barred from offering depositions since the court might have previously found them to be legally incompetent. However, it is important to note that regardless of an guardianship status, the court must still consider the competency of a potential witness regarding such individual’s ability to offer testimony.

Our attorneys practice in the field of Guardianship and are eager to help you understand the ways in which your ward’s competency might impact their ability to offer certain types of testimony if ever involved in a case.

Skip to content