If a loved one is experiencing memory loss or suddenly making poor decisions, you may want the court to appoint a guardian. This requires a declaration of incompetence.
Determining whether someone is incompetent to make their own decisions is a complicated process. (Note that some states use the term “incompetence,” while others may use “incapacity.”)
A person cannot be declared incompetent simply because they make imprudent or foolish decisions. For example, a court may not declare a person incompetent simply because they spend money in ways that seem odd to someone else. Also, a developmental disability or mental health condition is not, by itself, enough to declare a person incompetent.
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The standard for whether someone is legally incompetent isn't always the same as whether they have the capacity to make legal decisions. Proper execution of a legal instrument requires that the person signing have sufficient mental "capacity" to understand the implications of the document. (Read more in our article What Does It Mean to Be Incapacitated in Elder Law and Estate Planning?)
If a loved one becomes unable to make decisions for themselves, the court may appoint a substitute decision maker, or “guardian.” Some states call this a “conservator” or other term. Appointing a guardian is often only a last resort if less restrictive alternatives, such as a power of attorney, are not in place or are not working. (A power of attorney, or POA, lets someone you designate make decisions for you if you become unable to manage your own affairs.)
A guardian may be a family member, friend, or even a professional guardian.
The standard under which a person may require a guardian differs from state to state. In some states, these standards depend on whether you are seeking a complete guardianship or a guardianship over finances only. Generally, a court may deem a person in need of a guardian when they show a lack of capacity to make responsible decisionsor decisions that are in their best interests.
The court usually looks at a number of factors in determining the need for a guardian or conservator. These include the following:
Note that different types of guardianship, and alternatives to guardianship, exist. These differ regarding how much control the guardian has over their ward and their decisions.
To determine whether your loved one would benefit from a guardianship, work with an elder law attorney near you. They can assist with filing for a guardianship or other aspects of guardianship cases.
To find more information about guardianship, check out the following articles:
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The long legal battle over the fate of Terri Schiavo cast a much-needed spotlight on the importance of medical directives lik.
In a funny and scary segment, John Oliver recently highlighted problems with the guardianship system on his HBO show, Last We.
Sen. Charles E. Schumer (D-NY) introduced a bill in 2013 to change Medicare law so that elderly patients are not charged unfa.