Competency and Guardianship

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Each state has specific laws dealing with incapacitated persons and the appointment of guardians.

TIP: Check with your local library for specific materials. The library may even be able to direct you to local nonprofit organizations with specific familiarity in this field.

What does it mean to be "incompetent" or "incapacitated"?

An incapacitated person is someone who cannot receive or evaluate information or communicate decisions regarding his or her physical or mental well-being. This means the person cannot make decisions about his or her housing and dietary needs, care for physical needs or manage finances.

What procedures are needed to declare a person incompetent?

You will first have to file a petition in court. The petition should state a relationship to the alleged incapacitated person, the name and address of the person with the alleged incapacity and the nature of the incapacity. Provide the court with names of people who are familiar with the person and the alleged incapacity. Generally, the court will then appoint an attorney to represent the person with the alleged incapacity and a person or committee to examine the person.

TIP: In some jurisdictions, it may be up to the party seeking the finding of incapacity to locate professionals to make the examination. Call the clerk of the court to see if you are responsible for finding and paying for these professionals.

The examining person or committee will then file a report with the court and the court will rule whether the person is incapacitated.

What is a "guardian"?

A guardian is a person entrusted with the duty to take care of another person (the "ward") and that person’s property. The guardian can be either "general" or "specific" (also known as "unlimited" and "limited" guardianship, respectively). A general guardian cares for the ward and his or her property. A specific guardian cares for only specific or limited aspects of the person’s well-being or the person’s estate.

EXAMPLE: A specific guardian may take care of only the ward’s health care decisions or, alternatively, only the ward’s estate.

How is a guardian appointed?

A person becomes a guardian of an incapacitated person by a parental or spousal appointment or upon appointment by the court. An individual or a person interested in the senior’s welfare may petition for a determination of incapacity, in whole or in part, and for the appointment of a limited or unlimited guardian for the individual. The petition must set forth the petitioner’s name, residence, current address (if different), relationship to the respondent and interest in the appointment. To the extent known, state the senior’s alleged incapacity, his or her next of kin and any caretakers or legal representatives and the proposed guardian. The court generally looks for a general statement of the respondent’s property with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts.

How are guardians chosen?

Once the court receives a petition to establish a guardianship, the court sets a date and time for a hearing and appoints someone to visit and examine the senior, usually a social worker or someone with training or experience in the type of incapacity alleged. The court can also appoint a lawyer if it determines there is a need for one. The social worker then files a report with the court about the alleged incapacitated person’s abilities and those of the proposed guardian.

Courts normally consider proposed guardians by priority. Considered first is a person nominated by the alleged incapacitated person before the incapacity affected him or her. The court also considers a guardian under a durable power of attorney for health care decisions. The next in line are spouses and adult children.

SIDEBAR: The court, acting in the best interest of the respondent, may decline to appoint a person having priority and appoint a person having a lower priority or no priority.

SIDEBAR: In most situations, an owner, operator or employee of a long-term-care institution at which the alleged incapacitated person is receiving care cannot be appointed guardian unless he or she is related by blood, marriage or adoption.

What powers does a guardian have?

Unless a court places specific limitations on the guardianship, a guardian may apply for and receive money payable to the ward or the ward’s guardian for the ward’s support. The guardian can take custody of the ward and establish the ward’s domicile. Normally, this has to be in the state where the guardian is appointed and the ward resides. The guardian can consent to medical treatment, marriage or divorce and other decisions affecting the ward’s well-being.

Is a conservator the same as a guardian?

Technically, no, but the terms are often used interchangeably. A guardian is responsible for the custody of the incapacitated person (the "ward") and makes personal and health-related decisions. A conservator only controls the ward’s property, either real estate or finances or both. Sometimes a conservator is called a "guardian of the estate." One person can serve as both guardian and conservator. A successor guardian or conservator succeeds to the predecessor’s powers, and a successor conservator succeeds to the predecessor’s title to the protected person’s assets.

Who pays for the guardian’s services?

As approved by order of the court, a guardian is entitled to reasonable compensation for services as guardian and to reimbursement for services and goods, such as clothing, provided to the ward. The money is paid out of the ward’s estate. If a conservator other than the guardian or person who is affiliated with the guardian’s custody has been appointed for the estate of the ward, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without order of the court.

Does a guardian have to make periodic reports to the court?

Yes. In most states, a court-appointed guardian must file a report within a specified number of days of being appointed. This report will include all of the assets owned and debts owed by the incapacitated person. Then the guardian must file an annual report stating the account balances and physical and mental condition of the incapacitated person.

Can a guardian be replaced?

Yes. The appointment of a guardian terminates on the death, resignation or removal of the guardian. A resignation of a guardian is effective when approved by the court.

SIDEBAR: Termination of the appointment of a guardian does not affect the guardian’s liability for previous acts or the obligation to account for money and other assets of the ward.

A ward or a person interested in the welfare of a ward can petition for removal of a guardian on the ground that removal is in the best interest of the ward. A guardian may petition for permission to resign. A petition for removal or permission to resign may include a request for appointment of a successor guardian or conservator.

The court may appoint an additional guardian at any time. The successor guardian becomes eligible to act when the vacancy occurs, on a designated event, or when the acceptance of appointment is filed.

What are some alternatives to guardianship?

Petitioning for and having a guardian appointed is a complex and relatively expensive process. If you can accomplish the same goal—while protecting the person’s best interest —in another manner, it may be the better alternative. Any alternative will depend on the type and extent of the incapacity. Also, most alternatives require the consent of the incapacitated person before the onset of any mental incapacity.

Alternatives, sometimes referred to as "advance directives," include:

  • Power of attorney
  • Durable power of attorney for health care decisions

This allows a competent adult to designate another competent adult to carry out his or her medical wishes. This may include CPR and artificial feeding. It should include a statement that the declarant wishes for it to continue in the event of mental incapacity, not just physical incapacity.

  • Financial power of attorney

This power of attorney appoints someone to make financial decisions for the grantor in the event he or she becomes incapacitated. It should include a statement that the grantor wishes for it to continue in the event of mental incapacity, not just physical incapacity.

  • Living wills

A living will allows a competent adult to state whether he or she wants to be kept alive by artificial means.

TIP: You can revoke any of these as you would other documents. Destroy any written documents. Make a separate written document stating that you expressly revoke any earlier written directives.