Understanding Legal Incapacity and How It Is Determined

What is Incapacity?

A person is incapacitated if he or she is unable to receive and evaluate information or make or communicate decisions to such an extent that the person lacks the ability to meet essential requirements for physical health, safety or self-care without appropriate assistance.

A petition for the appointment of a guardian may be filed in the event there is medical documentation that a person is incapacitated. If the court finds the proposed protected person competent and not in need of a guardian, the court will dismiss the petition. However, if the court finds that appointment of a general guardian is appropriate, the court will appoint a general guardian of the protected person, estate, or person and estate.

Different levels of capacity.

There are different levels of capacity and someone who may lack capacity  for guardianship purposes may still have capacity to execute a will or trust.

However, behavior such as poor judgment, drug use or gambling, does not by itself, prove that a person has incapacity.

Guardianship is a very serious matter and should be considered only after other less drastic alternatives have been measured.