How to get someone with dementia declared incompetent? A legal guide for families

Over 6 million Americans are affected by Alzheimer’s disease, a common cause of dementia, and as cognitive abilities decline, families may need to know how to get someone with dementia declared incompetent to ensure their safety and financial security.

Quick Summary

The process involves a medical evaluation and a court petition to determine legal incapacity, potentially leading to the court-appointed role of a guardian or conservator to manage the individual’s affairs.

Key Points

• Legal vs. Medical Status: A medical dementia diagnosis is not a legal declaration of incompetence; only a court can make that determination.

• Less Restrictive Options: Explore alternatives like a Durable Power of Attorney or a trust before pursuing guardianship, especially if the individual still has some capacity.

• Court-Appointed Authority: The guardianship process is court-supervised, removing the individual's rights and giving a guardian legal authority over their care and/or finances.

• Requires Specific Evidence: The court requires clear medical evidence and documentation of functional incapacity, not just a diagnosis, to declare someone incompetent.

• Hire an Elder Law Attorney: Navigating state-specific laws and the court process is complex and best done with guidance from an experienced elder law attorney.

• Not a Permanent Decision: A legal determination of incompetence can be reviewed by the court if circumstances or the person's condition changes over time.

Understanding the difference between medical and legal incapacity

A diagnosis of dementia by a doctor is a medical determination, but it is not the same as being declared legally incapacitated or incompetent. Medical incapacity refers to a person's inability to make sound decisions regarding their health or finances due to cognitive decline. Legal incompetence, on the other hand, is a formal status determined by a court of law. A judge must review evidence and conclude that the individual lacks the capacity to make or communicate informed decisions. This distinction is critical because even someone with a dementia diagnosis may retain a level of capacity to make some decisions, and their legal rights cannot be removed without a court order.

The legal standard for incapacity

Legal standards for proving incapacity vary by state but generally focus on a person's functional abilities, not just their diagnosis. The court will examine whether the person can:

• Understand and process information relevant to their decisions.
• Appreciate the consequences of their choices.
• Reason logically and weigh alternatives.
• Communicate their decisions effectively.

Evidence of unsafe behaviors, financial exploitation, or inability to manage daily tasks often supports a finding of incapacity.

Alternatives to guardianship: Exploring less restrictive options

Before initiating a court proceeding to declare a person incompetent, it is important to explore less restrictive alternatives. Guardianship should be a last resort, as it removes the individual’s rights. If your loved one is in the early stages of dementia, consider these proactive tools.

Durable power of attorney (DPOA)

A Durable Power of Attorney allows a person (the principal) to appoint an agent to make financial or healthcare decisions on their behalf. A DPOA must be signed while the principal still has legal capacity. Unlike a regular POA, a durable one remains in effect after the principal becomes incapacitated. This is often the most straightforward and cost-effective method if implemented early enough.

Trusts

A living trust can be used to manage assets. The person with dementia can appoint a trusted individual as a successor trustee who can manage the trust's assets without court intervention if the person becomes incapacitated. A trust, like a DPOA, must be established while the individual still has the legal capacity to understand and sign the documents.

The guardianship or conservatorship process: A step-by-step guide

When a person with dementia is no longer able to manage their affairs and does not have a valid durable power of attorney or trust, a court-supervised process becomes necessary. This is known as guardianship (for personal decisions) and/or conservatorship (for financial decisions).

1. Consult with an Elder Law Attorney. This is the first and most critical step. An attorney can explain the laws in your state, help prepare the necessary paperwork, and guide you through the process.
2. File a Petition. Your attorney will help you file a petition with the local probate or family court. The petition will state the reasons why you believe your loved one needs a guardian and will include supporting evidence.
3. Gather Medical Evidence. A key part of the process involves obtaining a medical evaluation from a qualified physician or geriatric specialist. Their report will document the person’s cognitive impairment and its effect on their decision-making abilities. Courts often require multiple medical opinions.
4. Provide Notice to Interested Parties. The court will ensure that the individual and other family members are formally notified of the petition and the upcoming hearing. This is a fundamental due process right.
5. Attend the Court Hearing. At the hearing, the judge will review the medical evidence and hear testimony. The person alleged to be incapacitated will have their own court-appointed attorney (a guardian ad litem) to represent their interests.
6. Receive the Court's Decision. If the court finds clear and convincing evidence of incapacity, it will issue an order declaring the person incompetent and appointing a guardian and/or conservator. The court may grant full authority or limit the guardian's powers to preserve as much of the person's autonomy as possible.

Comparison: Guardianship vs. Power of Attorney

Feature	Durable Power of Attorney (POA)	Guardianship/Conservatorship
Initiation	Created voluntarily by the individual while still competent.	Initiated through a court petition when the individual is already incapacitated.
Authority	Agent's authority is defined by the document.	Guardian's authority is granted and defined by a court order.
Oversight	The agent has no ongoing court supervision.	The guardian is subject to court oversight, with regular reporting requirements.
Cost	Relatively inexpensive legal document.	Significantly more expensive due to court fees, attorney fees, and ongoing administrative costs.
Autonomy	Preserves the individual's autonomy by respecting their pre-incapacity choices.	Removes the individual's legal rights and decision-making power.
Revocation	The principal can revoke it at any time while competent.	Only a court can terminate or modify the guardianship.

The emotional and ethical considerations

Deciding to pursue a declaration of incompetence for a family member is profoundly difficult. It involves balancing the need to protect a vulnerable person from harm or exploitation with their right to self-determination. Open communication with family members and mental health professionals is crucial throughout this process. It is never an easy decision, and seeking legal counsel early can help ensure that the process is handled with dignity and respect for the individual's best interests. For additional resources on legal and financial planning for those with cognitive impairment, the Alzheimer's Association offers valuable information and support networks.

Conclusion: Prioritizing safety through legal action

Declaring someone with dementia legally incompetent is a serious and complex legal and ethical journey. It should only be pursued when less restrictive options are unavailable or ineffective and when the person's safety is at risk. Following the proper legal steps, guided by an elder law attorney and supported by clear medical evidence, is essential. While challenging, this process provides a critical legal framework for protecting vulnerable individuals with dementia and ensuring they receive the care and management they need. It is a protective measure of last resort that puts the person’s best interests at the forefront.

Frequently Asked Questions

What is the difference between Power of Attorney (POA) and guardianship?

A POA is a legal document created voluntarily by an individual to appoint someone to act on their behalf, while guardianship is a court-ordered process where a judge appoints a person to make decisions for someone deemed incapacitated.

Can I have someone declared incompetent if they have dementia but still make some decisions?

Yes, but the court will likely consider a limited guardianship. A limited guardianship grants the guardian authority only over specific areas where the person lacks capacity, allowing them to retain some rights and autonomy.

How do I start the process to get someone with dementia declared incompetent?

The first step is to consult with an elder law attorney in the state where the person resides. They can explain the local laws, help you gather the necessary evidence, and file a petition with the probate court.

How do you prove a person with dementia is legally incompetent to a court?

You must provide clear and convincing evidence, which typically includes medical reports from qualified doctors, affidavits or testimony from family members detailing instances of poor judgment or confusion, and functional assessments of their abilities.

What if the person with dementia already has a Power of Attorney (POA)?

A court-ordered guardianship generally overrides a POA. If the appointed agent is misusing their power or the individual with dementia refuses to cooperate, guardianship may be necessary. The court will determine if the existing POA is effective.

How much does it cost to declare someone with dementia incompetent?

Costs can vary significantly by state and depend on whether the process is contested. They include attorney fees, court costs, and medical evaluation expenses. Contested cases can be considerably more expensive.

Is declaring someone with dementia incompetent permanent?

No. A determination of incompetence can be reviewed by the court. If the individual’s condition improves (rare with dementia) or circumstances change, the court can modify or terminate the guardianship.