How To Declare Someone Mentally Incompetent

By Jane Meggitt - Updated June 16, 2017
Man at the psychotherapist

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

Mental Incompetence

You must understand what constitutes mental incompetence before petitioning a probate or family court. Just because a person acts oddly or makes foolish decisions doesn't mean she's mentally incompetent. Even a diagnosis of mental illness doesn't necessarily make a person incompetent. If she can no longer make responsible decisions, that's when mental incompetency comes into play.

Filing a Petition

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

Expert Evaluations

The court will schedule a hearing regarding your relative's competence, notify your relative of the hearing, and notify other family members if that is required by state law. At the hearing, you must present evidence that your relative is no longer competent. This includes a medical or psychological evaluation by a licensed physician or clinical psychologist. If your relative won't agree to an evaluation, you must contact the court to order such an examination.

You can also submit other documents supporting your contention, such as police reports if someone notified authorities about your relative's strange behavior. Your relative also has the right to introduce evidence proving her competency via expert evaluations.

Legal Guardianships

A person 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, always with her best interests in mind. 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 an estate guardian handles her financial affairs. In an emergency, the court might appoint a temporary guardian.

Who Can Serve

If you are 18 or older and have never been convicted of a felony, you're usually eligible to serve as a guardian. 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. If no family member or friend is willing or able to serve as a guardian, the court might appoint a private or public organization to act in that capacity.

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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