Determining Mental Incompetence
December 3, 2019
Many people are faced with the unwelcome task of having a family member declared mentally incompetent if that person is unable to make their own decisions. This is often seen when a relative suffers from mental or physical illness or is elderly; having the proper legal designation will make it easier to care for them. Going through the process can be difficult, but it can be the most beneficial decision for the incompetent family member.
First Steps for Determination
When a person is unable to carry out essential decisions pertaining to their affairs, that constitutes mental incompetence. It can include dementia, Alzheimer’s disease, and schizophrenia, marked by sporadic or consistent symptoms such as erratic behavior or psychosis.
To begin the process, a family member must first file a petition to be appointed as the person’s guardian. This is done at a local probate court and does not have to be initiated in the potential guardian’s home state. Then, an elder law attorney that is knowledgeable about incompetency proceedings and guardianships should be contacted. To smooth things along, the potential guardian should have copies of any pertinent paperwork, such as powers of attorney, estate documents, and living wills.
A psychological evaluation with a licensed psychological professional should also be scheduled. If the family member is not willing to undergo this, the court may be petitioned for a compulsory evaluation. If the person is a danger to themselves or others, there may be a need for a 72-hour hold.
How Psychological Evaluations Work
Also called mental status testing, these are designed to evaluate thinking ability and to gauge if the problems are increasing or improving. The testing consists of a series of questions and can take place in one’s home, office, or care facility. The health care provider performing the test will also look at the person’s appearance, considering if they maintain eye contact, grooming, and overall health.
Other areas for assessment include posture, attitude, and the ability to cooperate and correctly answer what is asked. The evaluator will also consider the person’s psychomotor activity, ability to focus, past and recent memory recall, judgment, and language function.
After the evaluation is finished, the provider will make recommendations based on their observations and data. The potential guardian must obtain a prepared form from the state of residence, complete it, attach the evaluation, and submit it to court. An incompetency hearing will then be scheduled, and the guardian should be prepared to bring additional evidence to present to the judge. This can include financial, legal, and medical documents that support the position that the family member no longer has the capacity to make sound judgments and decisions on their own.
Brooklyn Elder Law Attorneys at Korsinsky & Klein, LLP Help Families Protect Their Loved Ones
Although having a beloved family member declared mentally incompetent can be painful, it may be the best decision for you and your family. If you have concerns regarding an incompetent family member, contact the Brooklyn elder law attorneys at Korsinsky & Klein, LLP today. We will help you through this process. Complete our online form or call us at 212-495-8133 today for an initial consultation. Located in Brooklyn, New York, and Lakewood, New Jersey, we serve clients throughout Manhattan, Long Island, and Westchester, New York.