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 themself, the court may appoint one or more substitute decision makers. Guardians manage the medical and personal affairs of an individual while Conservators manage the financial affairs. In Massachusetts, the same individual can not be appointed to both roles. Decision makers are appointed by the court as a last resort if less restrictive alternatives, such as a health care proxy or 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 or conservatorship when they show a lack of capacity to make responsible decisions or decisions that are in their best interests.

Determining Competence

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 they make 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 they spend 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.

Learn More

View Guardianship and Conservatorship for additional reading.

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