What to Do When a Loved One Is Mentally Incompetent

Posted January 4, 2011 in Your Family & The Law by

Dealing with a family member’s medical issues can be stressful and emotionally draining. Of all the health problems we grapple with, some of the most difficult involve mental health issues. It can be difficult to discuss the medical and legal aspects of care and treatment with someone whose memory is failing or does not think or act rationally.

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You have a few legal options when someone you love is mentally incompetent.

Guardianship & Conservatorship

One of the most extreme options allows the state to appoint a guardian or conservator who becomes the official decision maker for a person who cannot make decisions on their own. (This person is known as the ward.)

"Guardian" generally describes the person with power to make decisions about the ward’s person. "Conservator" refers to the person with responsibility for a ward’s property and finances.

There are several steps that must be taken before a person can be named a guardian.

First, the prospective ward must lack the ability to make responsible decisions. The prospective guardian must then file a petition with the appropriate state court seeking guardianship. A hearing is then held to determine if the person is incapacitated and needs a guardian, and what roles and responsibilities the guardian should handle.

If the court decides a guardian is necessary, the court select a guardian. This won’t necessarily be the person who originally petitioned for guardianship. The court usually considers a person’s family and close friends, but a corporation or the state can also serve as guardian.

Trusts & Power of Attorney

If a person has the foresight to know that they may become mentally incapacitated, there are a few more legal options. These include living trusts and power of attorney.

A living trust is a revocable trust a person can set up to control and manage their property and affairs. The living trust is popular because it allows for disability planning. You can serve as trustee or co-trustee, but if you become incapacitated, your trust provides for a successor trustee, or your co-trustee serves alone. No court action is needed, there’s a seamless transition and your privacy is maintained.

A power of attorney is when a person (the principal) gives another (the attorney-in-fact or agent) the power and right to make decisions and take action on the principal’s behalf. Through a power of attorney, the principal can authorize his agent to act in health care, financial and business decisions. The powers of attorney can be customized to fit the principal’s needs. Among the options are a durable power of attorney, which goes into effect only when a person loses the capacity to act on his own.

Like a living trust, no courts are involved in setting up and using a power of attorney.

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