How To Declare Someone Mentally Incompetent

By Jane Meggitt - Updated November 28, 2018
Man at the psychotherapist

It's difficult to watch someone you love go downhill mentally. What starts out as forgetfulness or confusion can progress to a point where the person can no longer make sound personal decisions – he suffers from cognitive impairment. Now you're faced with a decision: Should you have him declared mentally incompetent? Laws regarding who might petition the court for such a declaration and related guardianship can vary by state.

Tip

You'll have to file a petition with the local district of your state's probate court to have someone declared mentally incompetent.

What Is Mental Incompetence?

It's important that you understand what constitutes mental incompetence before you petition the probate court. Just because a person acts oddly or makes foolish decisions, this doesn't necessarily mean that she's mentally incompetent. Even a diagnosis of mental illness doesn't always make a person incompetent. Mental incompetency comes into play when she can no longer make responsible decisions.

Filing a Petition

Depending on the state, any person with an interest in the allegedly incompetent individual's welfare might petition the local district of the state's probate court for an incompetency hearing. You must file the petition in the appropriate court in the county in which the individual lives. The court will usually appoint an attorney if your relative doesn't already have one, called a guardian ad litem. The attorney will visit with your relative prior to the competency hearing to obtain the information necessary to protect her interests.

Expert Evaluations Might Be Required

The court will schedule a hearing regarding your relative's competence. She'll be notified of the hearing date, as will other family members if that's required by state law. You must present evidence at the hearing that your relative is no longer competent. This can include a medical or psychological evaluation by a licensed physician or clinical psychologist. You can ask the court to order an evaluation if your relative won't agree to one.

You can also submit other documents supporting your contention, such as police reports if someone has notified authorities about your relative's strange behavior. Your relative also has a right to introduce evidence via expert evaluations that proves she's not incompetent.

Legal Guardianship Requirements

Anyone who is declared mentally incompetent requires a legal guardian to make decisions on her behalf. Depending on her condition, the court might grant limited or full guardianship. Full guardians make all decisions for the mentally incompetent person, called the "ward" after guardianship has been granted.

Depending on the state, guardianships might be divided into two categories. Someone appointed as guardian of the person makes personal decisions, such as those involving medical care and housing, while a conservator might be appointed to handle her financial affairs. In an emergency, the court might appoint a temporary guardian.

A conservator will be appointed in many states if the ward's financial situation is such that the amount of money to be handled each year is more than a state-mandated threshold. Guardians generally will handle small amounts of money, such as Social Security benefits and the like. For larger sums – $24,000 annually in Washington D.C., for example – the conservator will control the finances. The conservator will work alongside the guardian, although the same person might serve in both roles in some areas.

Who Can Serve

You're usually eligible to serve as a guardian or a conservator if you're age 18 or older and have never been convicted of a felony. Often, a spouse or family member receives legal guardianship. If you can't serve as a guardian, perhaps another family member is willing to step in. Friends can serve as guardians, or the court can appoint a special guardian. This is an individual who has received training in guardianship. The court might appoint a private or public organization to act in this capacity if no family member or friend is willing or able to serve as a guardian or conservator.

About the Author

A graduate of New York University, Jane Meggitt writes regularly for various legal blogs. Her work has appeared in LegalZoom, USA Today and many other publications.

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