Comprehensive Elder Law Services Addressing a Full Range of Legal Issues

  1. Home
  2.  » 
  3. Guardianships
  4.  » When is a person considered to be incapacitated?

When is a person considered to be incapacitated?

On Behalf of | Apr 25, 2023 | Guardianships | 0 comments

If a person lacks the capacity to take care of themselves and has not planned ahead by the preparation of Powers of Attorney, he or she may need to have a guardian appointed by the court. Guardianship restricts a person’s rights. Because of this, the court is very careful in determining if guardianship is necessary.  The court favors the least restrictive alternative.

The main trigger of the need for guardianship for an adult is the court determining the person is incapacitated, and there is not less restrictive option available.  The basic definition of incapacity is a person who is unable to effectively receive and evaluate information to make appropriate decisions for his or her own health and safety and financial well-being.  There are a few characteristics that may indicate someone may meet the incapacitated standard.

Safety is at risk

If a person has dementia, severe physical limitations or mental health issues that put their safety at risk, this is a good indicator they could use some help. A guardianship allows someone else to look out for them and regulate what they do so that they stay safe.

Daily tasks are difficult

If a person cannot take care of their activities of daily living, such as bathing, toileting or monitoring their medications, they may not be able to handle decision making for healthcare or financial matters. The court will often look at how well someone handles these types of daily tasks to see if help is needed.

Communication is lacking

If the person is unable to receive information to make decisions or to communicate their needs and wants, then a guardian may help. Someone who cannot fully explain what they need may have trouble taking care of themselves. They may need someone else to help ensure that appropriate care is provided.

Keep in mind, the court will first need to determine in someone is, in fact, incapacitated; and if so, then determine what is the least restrictive alternative for help, which may be previously prepared Powers of Attorney.  If there are no Powers of Attorney, guardianship may be the solution.