In Georgia, courts presume that an adult is competent to manage her own life and affairs unless evidence proves otherwise. Having a person declared incompetent means that the court, after hearing the evidence, decides that the individual cannot take care of herself and requires the help of a legal guardian. This is often done when elderly people suffer dementia or adults have mental issues that make them unable to care for themselves or their finances. The procedure begins with a petition brought by a family member or someone holding a power of attorney.
Definition of Incompetent
The term "incompetent" in the context of a petition for incompetency in Georgia is quite different than the common use of the term. You might use the term in reference to a waiter in a restaurant who brings you coffee with milk when you order black coffee, or a mechanic who messes up your car instead of fixing it.
But the term as it is used in the law has no relationship to this type of incompetence. Rather, it refers to an individual whose mental condition renders her unable to make decisions in her own interests. Legal incompetence is determined by a judge of the probate court in Georgia, after a full hearing at which the person is represented by counsel and evidence is presented. If the court finds the person to be incompetent, it will appoint a guardian for her unless she has already named someone to step in and look after her and her affairs in an existing power of attorney. If the court in Georgia appoints a guardian, the incompetent person is called a ward.
Read More: Legally Incapacitated vs. Legally Incompetent
Guardianship vs. POA
In a guardianship, any family member or friend of an individual can file a petition to have that person declared incompetent. The person bringing the petition must submit evidence on the issue, often statements from the person's doctors or a psychiatrist who has examined her. The person who is the subject of the petition has the right to an attorney to represent her interests. If she is found to be legally incompetent, the court will appoint a guardian to take charge of her affairs and ensure that she is cared for appropriately.
People can avoid guardianship if they are proactive. Any adult can name someone to look after her nterests should she become incompetent by creating a power of attorney, also called POA. A POA is a legal document in which one adult gives another authority to act on her behalf in certain areas or circumstances. Creating a POA that becomes effective if you lose capacity means that you get to decide yourself who will be making the decisions on your behalf, rather than leaving the issue to the probate court. But you can only make a POA while you are competent. Once you lose mental capacity, it is too late.
Filing an Incompetency Petition
In Georgia, in order to have someone declared incompetent, you must file a petition in the probate court in the county where the person lives. Although Georgia law does not require that you are represented by a lawyer to file the petition, many judges will not permit this type of petition to be filed by a lay person in their court, which means that an attorney is necessary. Since guardianship procedure includes a court hearing at which you need to present evidence and make arguments, it is not easy to handle on your own.
Note that if you bring the petition and don't succeed with it, Georgia law requires that you wait two years before bringing another. If the condition or circumstances of the person changes significantly, you may be allowed to file again sooner.
Declaring someone incompetent requires a legal proceeding and starts with a petition in the probate court in the county where the person lives.
- Lawyers.com: Guardianships and Conservatorships
- Catoosa County Probate Court: Guardianship
- Law Guru: Declaring Elderly Parent Incompetent
- Georgia Department of Human Services: Guardianship Law
- Georgia Department of Human Services: Abuse, Neglect and Exploitation of At-Risk Adults in Georgia
- The Law Dictionary: How to Legally Declare Someone Mentally Incompetent
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.