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.”)
Guardianship and Conservatorship
If a loved one becomes unable to make decisions for themselves, the court may appoint a substitute decision maker, often called a “guardian,” but in some states called a “conservator” or other term. 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. (A power of attorney, or POA, lets someone you designate make decisions for you if you become incapacitated.)
The standard under which a person is deemed to require a guardian differs from state to state. In some states, the standards are different depending on whether you are seeking a complete guardianship or a conservatorship over finances only. Generally, a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions or 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, 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 they make imprudent or foolish decisions. For example, a person may not be declared incompetent simply because they spend 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.
Consult With an Attorney
To help you determine whether your loved one would benefit from a guardianship, be sure to work with a qualified attorney near you.
Find more information about the ins and outs of guardianship and conservatorship and also how to file for a guardianship. If you are serving as a guardian of a loved one, you must act in their best interests; read more about what you need to know.