Incompetence is defined as not having or showing the necessary skills to do something successfully. By this standard, all of us are incompetent at something. Carmen and I are incompetent at most things.
So what do people mean when they ask the question, “Are you competent?” They mean legal capacity. When someone is declared legally incompetent a guardian is appointed. When adults are involved, the guardian is usually referred to as an adult guardian and granted adult guardianship.
How Is Someone Declared Legally Incompetent
When someone is declared incompetent, their rights are taken away. The government is essentially taking some or all of a person’s rights away and giving them to someone else. For this to happen the government requires a hearing.
States determine the definition of capacity. Most states will find a person lacks capacity (is incompetent) when a version of the following can be proven:
“…a person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, or chemical dependency to the extent that the person lacks capacity to make or communicate responsible decisions concerning that person’s matters of residence, education, medical treatment, legal affairs, vocation, finance, or other matters, or which incapacity endangers the person’s health or safety”
The court hearing is not nearly as difficult as you might presume. In most cases, seniors with capacity issues tend to involve (1) older seniors, (2) with limited resources (money). You may hear about the cases involving very wealthy people, but the majority of cases involve the opposite.
Incompetency Hearing Process
In most jurisdiction here’s what happens:
1.Papers & Filing
A. You’ll go to the courthouse (often circuit court or court of general jurisdiction; competency hearings are often heard by probate courts) and get forms to file a petition with the court.
B. You’ll follow the instructions on the forms and file a petition
A. The court will demand that a professional evaluate the person you want to be declared incompetent (aka “ward”).
B. Some states will allow the submission of a professional evaluation if it has occurred within the last six months.
C. Some states may require a certain type of professional with a specific type of certification to perform the evaluation.
A. The ward will have an attorney or one appointed on their behalf
B. You or your attorney will present evidence on why the ward should be declared totally or partially incompetent (its usually the evaluation report)
C. The court will weigh the evidence and if they determine the ward is incompetent, the court will issue an order of guardianship
A. The court issues a guardianship order.
B. This is manifest in “Letters of Guardianship” or something similar where the court issues a document that explains authorities of the guardian
C. The Guardian can present third parties (banks, medical professionals, etc.) with the order and the third party must grant the guardian those rights
Court Orders, Advance Directives & Powers Of Attorneys Create Different Types of Guardianships
Adult guardianships come in three flavors: Guardian of the Person; Guardian of the Estate or Property; and Plenary Guardianship.
Guardian of the Person
Guardianship focuses on the incapacitated person’s health or medical condition. Responsibilities include things like making hospital appointments, coordinating with assisted living, paying medical bills, and securing medical coverage and insurance. Guardianships can be appointed by a number of documents including an advance medical directive.
Guardian of the Estate or Guardian of the Property
Guardianship focusing on responsibility over the person’s estate, property, and assets. Duties include things like inventorying and distributing property items, managing bank business, filing taxes, and investing.
This is a general guardianship that combines the duties of a guardian of the person and the duties of a guardian of the estate. In other words, a plenary guardian is legally in charge of handling both the person’s medical matters as well as personal property matters.
Adult guardianships begin once the estate holder is found incapacitated or unable to manage their own personal affairs.
A guardian has the power to act on the incapacitated person’s behalf. Essentially, they become their agent.