If a loved one, who failed to create durable Powers of Attorney, is experiencing memory loss or suddenly making poor decisions, you may want the court to appoint a guardian. The appointment of a guardian requires a declaration of incompetence. Determining whether someone is incompetent to make their own decisions is a complicated process. A guardian is only appointed as a last resort if less restrictive alternatives, such as a power of attorney, are not in place or are not working.
The standard under which a person is deemed to require a guardian (referred to as a conservator in some states) differs from state to state. The court usually looks at a number of factors in determining the need for a guardian or conservator, including the following:
- Comprehension of important medical or financial information
- Appreciation of the importance of medical and financial decisions and understanding the effect of those decisions
- Ability to make reasonable decisions using the information available
- Capacity to communicate decisions in a consistent manner
- Ability to maintain a safe environment
A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.
Keep in mind that the standard for whether someone is legally incompetent to care for themselves is not 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.
In short, persons who do not create a life care plan, and later become incapacitated/incompetent, may end up with a court-ordered guardian being appointed to make their financial and/or health care decisions. Creating a life care plan (which includes Durable Powers of Attorney and in some cases other advance directives) now, while one is competent, allows individuals to decide who they want to act on their behalf and, also, reduces the likelihood that a future guardianship will be necessary.
If you have a loved one, who does not have valid Durable Powers of Attorney in place, and you are now concerned that he/she may need a guardian, meeting with an attorney that handles guardianship matters is strongly recommended.