We’re here to help you discover all your options and make decisions with confidence.
FREE Ebook: Next Stop: Nursing Home Get My Copy Now!
Medicaid & Elder Law Attorneys | Orlando, FL | Family First Firm

Schedule Your Consultation Today!

(407) 574-8125
Family First Logo

When Can Someone Be Declared Legally Incompetent?

Get The Legal Help You Need

When Can Someone Be Declared Legally Incompetent?

January 24, 2022
Geoff Hoatson

If a loved one is experiencing memory loss or suddenly making poor decisions, you may want the court to appoint a guardian, which requires a declaration of incompetence. Determining whether someone is incompetent to make their own decisions is a complicated process.

If a loved one is unable to make decisions for him or herself, the court may appoint a substitute decision maker, often called a "guardian," but in some states called a "conservator" or other term. A guardian is only appointed as a last resort if less restrictive alternatives, such as a power of attorney, are not in place or are not working.

The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions or decisions that are in their best interests.

The court usually looks at a number of factors in determining the need for a guardian or conservator, including the following:

  • Comprehension of important medical or financial information
  • Appreciation of the importance of medical and financial decisions and understanding the effect of those decisions
  • Ability to make reasonable decisions using the information available
  • Capacity to communicate decisions in a consistent manner
  • Ability to maintain a safe environment

A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. Also, 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 have sufficient mental "capacity" to understand the implications of the document.

If you need assistance navigating the guardianship process with a loved one, please give our office a call at (407) 574-8125 or email us at [email protected].

Copyright © 2023. Family First Firm - Medicaid & Elder Law Attorneys. All rights reserved.
The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
Family First Firm – Medicaid & Elder Law Attorneys
(407) 574-8125
https://familyfirstfirm.com
Share This Blog

Our Locations

Orlando Office

Family First Firm - Medicaid & Elder Law Attorneys

1901 W Colonial Dr,
Orlando, FL 32804

Get Direction

Altamonte Springs Office

Family First Firm - Medicaid & Elder Law Attorneys
By Appointment Only

715 Douglas Ave Suite# 40,
Altamonte Springs, FL 32714

Get Direction

Get free legal advice sent to your inbox

Name(Required)

The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship

407-305-7616
Skip to content