If there is one thing that you should know about estate planning, it is that you or your loved one must be competent when creating the plan. Someone who doesn’t understand the documents that are being drawn up or who doesn’t realize what rights they’re signing away has no actual legal ability to sign. Someone who is not competent may make serious errors or easily get taken advantage of, which is something the law tries to eliminate.
Declaring someone incompetent isn’t as easy as you may think, though. You’ll have to show that a loved one is suffering from a mental illness or a problem that renders it impossible for them to make sound decisions for themselves. You will probably need to go to court, and you will want to work with an attorney throughout the entire incompetency application and hearing process. Here’s what you’ll need to do to have them declared incompetent.
1. Ask for guardianship
One good way to have someone declared incompetent is to ask for guardianship. If you ask for guardianship, you’ll need to explain why you should receive the legal power to direct their affairs or care for them. If the guardianship is granted, then you’ll be given the legal power to take care of them and their affairs.
2. Submit an evaluation to a court
In most cases, you can have an expert psychological evaluator sign a prepared form that explains the mental state of the person you want to have marked incompetent. The expert will give their own recommendations, and then you can attach that to your application for guardianship.
3. Go to an incompetency hearing
Finally, go to your loved one’s incompetency hearing. There, you’ll need medical documentation, legal documents and financial paperwork to present to the court. This paperwork should support your case and what you’d like to see happen.
Many people avoid having a loved one declared incompetent, because it’s uncomfortable and can cause a lot of distress. The reality, though, is that someone who is unable to make healthy decisions or care for themselves may need someone else to watch over them. That’s the value of being able to seek a guardianship and to have someone declared incompetent. With that support from the court, you’re in a better position to protect your loved one and do what needs to be done to protect their estate.