Sometimes, injuries or illnesses stop individuals from making sound legal and financial decisions for themselves. For example, as Alzheimer’s disease progresses, patients often struggle to complete daily tasks and may have lost the mental capacity to sign legal contracts. If you have a loved one in this type of situation, you are probably looking for ways to protect and care for them.
Depending on the state in which the person lives, the symptoms and other factors, the best course of action may be to declare your loved one legally incompetent or incapacitated. This can be a difficult process that costs time, money and emotional turmoil. That’s why anyone considering this path needs to learn the relevant terms, possible alternatives to going to court and what to expect during the process.
What Is Legal Incompetence?
Incompetence has several legal definitions, depending on the context. In criminal law, mental incompetence describes the inability to stand trial or give testimony due to mental abilities. In a court setting, when an individual is declared mentally incompetent, they may not be allowed to stand trial.
In other legal matters, mental incompetence means the inability to carry out some sort of duty due to mental illness or cognitive decline. People in these circumstances may not have the mental capacity to handle their finances, make medical decisions or carry out other important duties.
An individual cannot be declared mentally incompetent legally unless a judge declares it. Incompetency judgments can be temporary or permanent. For example, someone may be temporarily incompetent after a head injury until he or she completes recovery. However, an individual who has worsening dementia may be permanently incompetent.
What Is Guardianship or Conservatorship?
If a person is declared legally incompetent, he or she becomes known as a ward. The judge assigns someone to care for the ward. The caregiver may be called a guardian or a conservator, depending on the state and the specific duties they are given. A guardian may be given powers to make legal, medical and/or financial decisions on the ward’s behalf.
Sometimes, the courts split up these duties. For example, one adult child of a ward may look after finances, while the other makes decisions about the parent’s health. An individual who watches only after a ward’s finances is usually called a conservator.
Guardians are appointed by judges, and they must have certain characteristics, including:
- Over the age of 18.
- Good moral character.
- Financially and mentally stable.
- No felony convictions.
In some states, the guardian must be related to the ward. In other cases, a state organization or nonprofit can take guardianship.
Legally Incompetent Criteria
All adults in the United States are legally competent until a court decides otherwise. Someone may become mentally incompetent through a disorder or injury at any point in their lifetime. To be declared legally incompetent, the disorder must be so serious that the person needs supervision to protect themselves, others and property.
Medical doctors are usually involved before a judge can declare an individual mentally incompetent. While the exact legally incompetent criteria are imprecise, judges consider the opinions of doctors and other evidence presented in court.
Getting Guardianship Without the Court
A long legal battle is not the only way to have an individual declared a legally incompetent adult. If you believe your loved one may meet the criteria for legally incompetency, an honest discussion may be in order. First, ensure the person in question is safe and healthy.
Next, you can approach the potentially incompetent person about the issue. The impaired person may decide to give someone power of attorney. If the original conversation doesn’t go well, the family may try mediation through someone such as a family counselor. If everyone comes to an agreement, it can save all involved some financial loss and emotional pain.
It’s important to note that power of attorney is not the same as guardianship. The biggest difference is that in power of attorney, an individual has the ability to choose who will help them as well as the powers the person will have. In a guardianship situation, these decisions are left to the court.
Consult an Experienced Attorney
Sometimes, the idea of giving someone control of any sort does not sit well with the impaired person. Even with the best of intentions, family members may not succeed in convincing their loved one to sign over power of attorney. To keep a loved one safe, the family may have to consider taking the matter to court.
The first stop on this path should be to visit an experienced attorney. Probate and estate attorneys often have experience with legally incapacitated adults. Clients should be sure to ask lawyers if they have experience with these cases and take advantage of free consultations.
File a Petition for Guardianship
If an attorney agrees that the family has a good case to declare their loved one mentally incompetent, the first step may be to file a petition for guardianship. The exact process to do so differs among the states. However, the petition goes to the local probate courts.
The petition should name the person who wants to become guardian. If the family wishes to split responsibilities, they can say so.
Schedule and Submit an Evaluation
Once a petition is in court, the person who may become a ward must undergo a medical evaluation to determine competency. The individual may attend the appointment willingly. Or, the potential guardian may need to convince the court to order an evaluation.
Typically, a judge needs to see some evidence of incompetence to order an evaluation. Loved ones can testify to the troubling behavior they have witnessed. Once the person in question sees a qualified doctor, the results of the evaluation must be submitted to the court.
Present Evidence to the Court
The judge will set a date to hear evidence on both sides of the case. Interested parties should be sure to attend. Depending on the case, witnesses may include doctors, family members and friends.
The hearing is often emotional and difficult for all parties involved. However, it’s vital to be open and honest about any concerns during this part of the case. After hearings, courts make important decisions about legally incompetent adults, including:
- If the person meets the legally incompetent criteria;
- If so, in what capacities;
- Who will serve as guardian; and
- The specific rights and responsibilities of the guardian(s).
In some cases, the court may name the person temporarily incompetent and give an end date for the orders. In other cases, the order will be indefinite.
Responsibilities of Guardians
Taking guardianship of a legally incompetent adult gives an individual many rights. The guardian makes serious decisions on behalf of another person and has almost complete control of the ward’s life.
The guardian also takes on serious legal responsibilities. Guardians must make decisions that benefit the ward, even if it does not benefit the guardian. The guardian should also supervise the ward’s physical and emotional wellness.
Depending on the state and the court order, the guardian may also need to update the court from time to time. These updates usually include financial records, so the courts can ensure the guardians aren’t stealing from their wards.
A Court Can Remove a Guardian for Neglect
If an individual suspects a guardian of neglecting his or her ward, the issue can go back to court. A court can then remove a guardian and appoint someone else.
- Legal Dictionary: Incompetency Legal Definition
- Elder Law Answers: Guardianship and Conservatorship
- Elder Law Answers: What's the Difference Between Guardianship and Power of Attorney?
- LegalZoom: Guardianship Laws for Adults
- Orlowsy and Wilson, Ltd.: What to Do if Your Parent or Spouse is Incompetent
- Find Law: Legal How-To: Declaring Someone Incompetent
- Aging Care: https://www.agingcare.com/articles/what-are-the-duties-of-a-legal-guardian-for-eldery-parents-134189.htm