Estate PlanninG

When Can Someone Be Declared Legally Incompetent?

If you’re a caregiver of an elderly person, it may become increasingly difficult to take care of them if you’re not their legal guardian. But becoming a guardian requires obtaining a declaration of incompetence. Although this is often in the elderly person’s best interests, it can be a complicated process.

If a loved one is unable to make decisions for themselves, the court may appoint a substitute decision-maker, often called a “guardian” or “conservator”, depending on the state. A guardian or conservator is only appointed as a last resort if less restrictive alternatives, such as a power of attorney, are not in place or not working.

Whether or not a person is deemed to need a guardian depends on the state. In general, a person is judged to require guardianship when they show an inability to make responsible decisions or decisions that are in their best interests.

Some of the factors that the court will look at when determining the need for a guardian or conservator include the ability to:

  • Understand and comprehend important medical or financial information

  • Appreciate the importance of medical and financial decisions and understand the effect of those decisions

  • Make reasonable decisions using the information available

  • Communicate decisions in a consistent manner

  • Maintain a safe environment

To be declared incompetent, a person must show the lack of capacity to make sound decisions - not simply because they’ve made irresponsible or foolish decisions. For example, a person spending money in ways that seem odd to someone else isn’t a good enough reason for them to be declared incompetent. In addition, 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 has sufficient mental "capacity" to understand the implications of the document.

What’s next? Check out our other resources and blog posts below on guardianship and conservatorship. Then, schedule a free phone consultation with us to discuss your situation. We will take our time to understand your situation and provide thoughtful advice. Call Santaella Legal Group, serving San Ramon, Danville, Dublin, Pleasanton & the Tri-Valley area, at (925) 831-4840.

Read more about guardianship and conservatorship:

Guardianship & Conservatorships Explained

“Your Legal Rights” Podcast - An Interview With Jeff Hayden About Guardianships and Conservatorships

What It Means to Be the Guardian of a Minor

What is a Limited Conservatorship?

What We Can Learn From Britney Spears’s Legal Battles About Conservatorships