If you feel being mom or dad’s legal guardian is in their best interests, you will first need to petition a court of law to have your parent (the “ward”) declared legally incompetent based on evidence that’s heard by a judge.
You start the process of declaring a person mentally incompetent by filing an official petition with the local district of your state’s probate court. At the same time that you are filing to have someone declared mentally incompetent, you are also filing to become their legal guardian.
But overall, if someone is found in court to be incompetent, they often will be assigned a guardian or conservator to manage decisions on their behalf. To decide whether an older person is legally competent, the court will need to know about the person’s ability to manage certain major types of decisions.
An attorney may be appointed to represent the person with dementia. The hearing will allow any objections to, or evidence for and against, declaring the person incompetent.
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Mental incompetence is the inability of a person to make or carry out important decisions regarding his or her affairs. An individual is defined as mentally incompetent if h/she is manifestly psychotic or otherwise of unsound mind, either consistently or sporadically, by reason of mental defect.
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The LPA forms need to be signed by someone, apart from your chosen attorney, to state that you have the mental capacity to make an LPA. The forms also need to be witnessed. You then need to register each LPA with the Office of the Public Guardian. Either you or your attorney can do this.
A separate probate court proceeding, called a conservatorship, is the means through which a judge appoints a conservator to make financial decisions for a person who is unable to make those decisions.
Typically, as long as dementia is minor or nonexistent, a person in the beginning stages of a dementia-causing disorder will be deemed mentally competent in the eyes of the law.
A doctor cannot go against a person’s wishes unless a court declares the person legally incapacitated or the person’s wishes are medically or ethically inappropriate. If doctors find that a person lacks clinical capacity, they turn to someone with the legal authority to act as substitute decision maker.
making sure that the person with dementia has the opportunity to consider making an enduring power of attorney (if they don’t already have one) as soon as possible after diagnosis and while they still have the capacity to do so.
The only way you can legally force someone to move into a long-term care facility against their will is to obtain guardianship (sometimes called conservatorship) of that person.
If your parent is already mentally incapacitated but hasn’t granted Power of Attorney to you in a Living Will, you’ll need to go before a judge to obtain conservatorship (or an adult guardianship). A conservatorship will grant you the right to make medical and financial decisions on your parent’s behalf.
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Do I need a lawyer to prepare a Power of Attorney? There is no legal requirement that a Power of Attorney be prepared or reviewed by a lawyer. However, if you are going to give important powers to an agent, it is wise to get individual legal advice before signing a complicated form.