When Is Someone Legally Incapacitated?

If a loved one is experiencing memory loss or suddenly making poor decisions, you may need to consider what steps to take. In the realm of elder law and estate planning, the option of last resort is to ask the court to appoint a guardian, which requires a declaration of incapacity. 

Because a guardianship takes away the rights of a person, it should be pursued only if no other avenues of assistance are possible. Elder law and estate planning professionals can help guide you through these difficult decisions, ensuring that all other options are considered before resorting to guardianship. 

​What Does Incapacity Mean?

​Determining whether someone is incapacitated such that he or she is unable  to make their own decisions is a complicated process. 
A person cannot be declared incapacitated simply because they make imprudent or foolish decisions. For example, a court may not declare a person incapacitated simply because the person spends money in ways that seem odd to someone else or even the court. 
​Furthermore,  a developmental disability or mental health condition is not, by itself, enough to declare the person incapacitated.

​A person cannot be declared incapacitated simply because they make imprudent or foolish decisions.

The standard for whether someone is legally incapacitated isn’t always the same as whether the person has 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.

Adult Guardianship

If a loved one becomes unable to make decisions for themselves, a guardianship may be unavoidable if your loved one has not done any estate planning . 

• Minimum estate planning includes a durable power of attorney – which designates another person to manage the person’s affairs when the person in unable to manage his or her own affairs.
• Good estate planning includes a revocable trust and designating a succesor trustee to manage the trust assets for th benefit of an incapacitated person.

If no prior estate planning exists or proves to be inadequate, the court may appoint a substitute decision maker, which may be either a guardian or conservator.   

• A conservator is responsible for the person’s assets. 
• A guardian, on the other hand, is responsible for the person’s health and well-being and can also be responsible for the person’s assets.

A guardian may be a family member, friend, or even a professional guardian.
The standard under which a person may require a guardian differs from state to state. In some states, these standards depend on whether you are seeking a complete guardianship or a or just a conservatorship over th person’s assets. 
Generally, a court may deem a person in need of a guardian when they show a lack of capacity to manage all or some of their affairs or meet some requirements of their health, safety and well-being.
The court usually looks at a number of factors in determining the need for a guardian or conservator. These include 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

Note that different types of guardianship, and alternatives to guardianship, exist. These differ regarding how much control the guardian has over their ward and their decisions.

Legal Standard for a Guardianship in the District of Columbia

In the District of Columbia, the court may appoint a guardian or conservator for an individual, when the individual is proven to be incapacitated.  ​ An incapacitated individual is

an adult whose ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that he or she lacks the capacity to manage all or some of his or her financial resources or to meet all or some essential requirements for his or her physical health, safety, habilitation, or therapeutic needs without court-ordered assistance or the appointment of a guardian or conservator.

Legal Standard in Maryland

In Maryland, the court may appoint a guardian of the person or a guardian of the property, and a guardian can be of both the person and property. 

Guardian of the Person

A court will appoint a guardian of an alleged disabled person if it determines by clear and convincing evidence that a person (the alleged disabled person):

1. cannot make or communicate responsible decisions about themself because of mental disability, disease, habitual drunkenness, or addiction to drugs,  AND
2. there is no less restrictive form of intervention available. If appointed, the guardian of the person will make decisions about that individual’s health care, food, clothing, shelter, and other related matters. 

Guardian of the Property

A court will appoint a guardian of the property if it determines that the alleged disabled person:

1. is unable to manage their property or affairs because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance,  AND
2. has or may be entitled to property or benefits which require proper management.

If appointed, the guardian of the property will make decisions about that individual’s money, income, stocks and bonds, and other financial matters. 

Legal Standard in Virginia

In Virginia, the court may appoint a guardian or conservator upon a finding by the court or even a jury that the alleged person is incapacitated and is in need of a guardian or conservator.

“Incapacitated person” means an adult who has been found by a court to be incapacitated to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to
​(i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or
​(ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. ​

Final Thoughts

Guardianships in the District of Columbia should be avoided.  We work to ensure that our clients and their families stay out of court – most importantly guardianship proceedings. 
If a guardianship cannot be avoided, you should be aware that you may be successfully appointed as the guardian of your loved one.  However, you will likely find the requirements and reporting obligations to be overwhelming and if you miss a deadline, the court will readily replace you with a professional guardian and you will lose complete control over your loved-one and his or her resources. 
To ensure that you do not lose control, you must obtain counsel to advise you on how to meet the requirements and reporting obligations.