Legal How-To: Declaring Someone Incompetent
How do you declare a person legally incompetent?
This is a common question for those who have elderly family members or those suffering from mental illness, as it can become harder to take care of these loved ones without the proper legal designation.
Here are five general steps to follow to get someone declared legally incompetent:
1. File for Guardianship.
If you haven't already done so, you need to file a petition to be appointed as guardian over the person you wish to be declared incompetent.
Applying for guardianship with your local probate court, even if not necessary in your home state, will give you the legal power necessary to direct your loved one's affairs as well as designate him or her as legally incompetent.
2. Consult an Attorney.
Speak with a local attorney who is familiar with guardianships and incompetency proceedings and discuss how to proceed with filing your incompetency petition.
Make sure to bring any estate or legal documents relating to the incompetent person, including any powers of attorney or living wills.
3. Schedule a Psychological Evaluation.
Your loved one cannot be deemed incompetent until he or she is evaluated by a licensed psychological professional.
If the person does not cooperate, you may petition the court for a compulsory evaluation as part of your guardianship petition -- which differs from the 72-hour hold placed on someone who may be a danger to herself or others.
4. Submit the Evaluation to the Court.
Many states will have a prepared form -- like this one from Ohio -- by which you may submit to the court an expert's psychological evaluation of the person you wish to have deemed incompetent.
The psychological expert will make his or her recommendations regarding your loved one's mental health and capacity on this form, which you will then attach to your application for guardianship and/or your incompetency petition.
5. Attend the Hearing.
At the incompetency hearing, you will likely be asked to present evidence to a judge, in addition to the expert's evaluation, of the person's mental or physical incapacities.
Speak with your lawyer before the hearing and make sure to bring any medical, legal, or financial documents that support your position that the incompetent person lacks the capacity to make decisions and judgments for themselves.
This process is often unpleasant and heart-wrenching, but often the outcome is truly beneficial for the incompetent person.
- Find Family Law Attorneys Near You (FindLaw's Lawyer Directory)
- Ask a Question About Wills, Trusts, and Estates in Our Community Forum (FindLaw)
- Ten Things to Think About: Choosing a Guardian (FindLaw)
- Examples of State Laws on Guardianships (FindLaw)
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