It’s difficult to watch a loved one lose the ability to safely and rationally care for themselves, especially when the change involves a gradually diminishing mental capacity due to senility, dementia, Alzheimer’s disease, or other illnesses and injuries. What begins with moments of confusion and forgetfulness often progresses to a state of cognitive impairment, where the adult can no longer make sound personal and financial decisions. In these unfortunate situations, it’s important for a family member, friend, or organization to step in and handle their affairs as soon as possible.

 

Having someone declared mentally incompetent for a power of attorney

If the adult in question still has a sufficiently sound mind and is willing to relinquish control over their affairs, the best solution is to appoint an agent with a power of attorney. Most attorneys can draft a power of attorney contract in less than an hour, so the process is significantly faster and more affordable than guardianship or conservatorship proceedings.

Though power of attorney contracts can vary widely from case to case, it’s common for the principal (the party issuing the contract) to restrict the agent’s access to their assets and affairs until the principal is declared mentally incompetent. To be declared incompetent or incapacitated for the purpose of a power of attorney, the principal’s physician or psychologist simply needs to perform an evaluation and issue a letter detailing the status and extent of his or her mental capacity.

There are two important drawbacks to a power of attorney, however. First, the principal must be of sound mind to issue one, so adults who have lost their full mental capacity don’t even have the option to issue a power of attorney. If an incapacitated adult attempts to issue a power of attorney, the court will invalidate the contract. The second challenge arises in situations where the principal withdraws their willingness to hand over control or becomes hostile with the agent. Since a power of attorney is a voluntary contract, it can be voluntarily revoked by the principal at any time. This can be problematic if the principal is incapacitated, irrational, and acting erratically.

 

Having someone declared mentally incompetent for a guardianship or conservatorship

Guardianships and conservatorships are protective proceedings where a caretaker is given the legal authority to take over the decision-making for an incapacitated adult (known as the ward in guardianships, and the protected person in conservatorships). In a guardianship, the guardian is given control over the ward’s healthcare and/or personal affairs (living arrangements, food, clothing, transportation, etc.). In a conservatorship, the conservator is given control over the ward’s assets and financial affairs. If the incapacitated adult is completely incapacitated, the court may appoint someone to serve as the guardian and conservator.

If you have a family member or friend who has become mentally incapacitated and needs someone to handle their finances, healthcare, and/or personal care, here’s how to go about the process of having them declared incompetent and initiating protective proceedings:

  1. Hire an attorney – guardianship and conservatorship proceedings can be a long and complex process, so you’ll need an experienced attorney to represent you and guide you through the proceedings.
  2. File a petition for guardianship – your attorney will file a petition for guardianship and/or conservatorship with the court in the county where the incapacitated adult lives.
  3. Serve a notice of hearing to all interested parties – when the court clerk accepts the petition, he or she will schedule a hearing. You’ll be required to send a notice of hearing to all interested parties (namely the proposed ward and family members) and file proof of service with the court at least 30 days before the hearing.
  4. Ensure that the incapacitated adult has an attorney – if the adult in question has sufficient assets to hire an attorney, you can use estate assets to hire a personal attorney to represent him or her throughout the protective proceedings. If the adult can’t afford an attorney, the court will appoint one for them.
  5. Schedule a medical evaluation – it’s best to have the incapacitated adult’s doctor or psychologist complete the evaluation, but if that’s not possible (i.e. if there’s a conflict of interest) then you can use a third-party, unbiased physician or psychologist. The examiner will need to fill out a certificate of incapacitation that you can submit to the court, and the judge assigned to the case has the right to summon the examiner to testify in court if necessary.
  6. Schedule an evaluation with the court investigator – in most cases, the court will assign an investigator to interview and evaluate the incapacitated adult. If so, you’ll be required to pay for the court’s investigation with the initial filing fee.
  7. Attend the guardianship hearing – at the hearing, you’ll have the opportunity to present your case as to why a guardianship or conservatorship is necessary, and you’ll need to prove to the judge that you are the best-qualified candidate to serve as the guardian or conservator. The judge will usually attempt to speak with the prospective ward or protected person, either in-person or via video conference. The adult’s attorney will present their case for or against the proposed guardianship or conservatorship, and any other interested parties have the right to testify for or against the protective order.

If the judge determines that further due diligence is required, the court will schedule a follow-up hearing. Otherwise, assuming the judge approves of the petitioning guardian or conservator, the court will issue an order for guardianship and/or conservatorship. The judge will sign a letter authorizing the conservator or guardian, and in some cases the caretaker may be required to complete a state-approved training course before taking control of the incapacitated adult’s assets.

 

Does a spouse need a power of attorney, guardianship, or conservatorship?

Your spouse has the legal ability to make important healthcare decisions and provide for your living arrangements, and he or she can access all of your joint accounts and community property. However, while most spouses informally access and control their spouse’s individual accounts and assets, they don’t technically have the legal authority to do so.

If your spouse became incapacitated and you needed to access his or her personal financial assets, you may run into some problems with the financial institution that manages the assets. As such, it’s always a good idea to issue your spouse a durable power of attorney that provides them with unlimited access to your assets and affairs if you become incapacitated. If your spouse becomes incapacitated and he or she doesn’t have a power of attorney, you’ll need to petition for guardianship or conservatorship.

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