What happens when a person cannot make decisions for themselves?
Sometimes a person is not able to make decisions for themselves. This can be because a person is too young or perhaps the person’s ability to understand or communicate is impaired. In these instances, the court may need to appoint someone to make decisions on their behalf. The court may appoint a guardian to make personal and medical decisions, or a conservator to make financial decisions.
When is court involvement necessary?
With respect to a minor child, court involvement is typically required whenever it is necessary to allocate parental authority and responsibility to a person other than the child’s parent or guardian. In certain circumstances, such as when a parent or guardian will be temporarily unavailable, court involvement may be avoided. This can be done by the parent or guardian temporarily delegating parental authority through compliance with certain statutes.
With respect to adults, court involvement is typically required when a person no longer has legal capacity to make health care, financial, or legal decisions for themselves. In many cases, a person can plan for incapacity and avoid the need for a court to appoint a guardian or conservator by executing advance directives selecting others to make those decisions at the appropriate time. A health care proxy is used to appoint someone to make medical decisions. A power of attorney is used to appoint someone to make financial decisions. If these documents are not in place at the time of incapacity and important decisions must be made, frequently the only option left is to go to court.
When does an adult lack capacity to make their own decisions?
There are 3 main categories of capacity when it comes to adult decision making. The level of capacity required depends on the type of decision to be made.
Testamentary Capacity
This refers to the level of mental capacity required to execute a last will and testament and engage in estate planning. In order to be valid, a person executing a will must have an ability to understand, in a general way, the nature and extent of his or her property and the ability to carry in his or her mind the persons who would naturally have some claim to that person’s remembrance.
Capacity to contract
This refers to the ability to enter into agreements and engage in financial dealings. In order to have the capacity to contract, the person must have more than a transient surge of lucidity. It involves an ability to comprehend the nature and quality of the transaction, together with an understanding of its significance and consequences.
Capacity to give informed consent
This refers to the ability to make decisions concerning medical treatment. In order to give informed consent, the patient must be able to choose a course of medical treatment (or non-treatment) based on full disclosure and understanding of the benefits, risks, side effects, and possible outcomes of the treatment choices.
It is important to understand that a person may have the legal capacity to make some decisions, but not others. For example, a person in a coma surely would not have the capacity to make any decisions. On the other hand, a person with Alzheimer’s, depending on its severity, may have the capacity to execute a will, but not sign a contact or make medical decisions.
If an incapacitated person purports to enter into a transaction, that transaction can be nullified by a court and anyone who improperly manipulated the incapacitated person into acting could be held liable. That is why it is important to consult with an elder law attorney, particularly when questions of capacity, including age-related cognitive decline and dementia, are involved.
Guardianship & Conservatorship FAQs
In a nutshell, guardians are appointed by the court to make healthcare related decisions for an incapacitated person. Conservators are similar except they are only empowered to make financial decisions for the person. In an appropriate situation the court may appoint someone to fill both roles.
It depends on the circumstances and the degree to which the spouse is cognitively impaired. If your spouse executed a properly crafted durable power of attorney and health care proxy giving you the authority to make financial and healthcare decisions you may be able to delay, and possibly completely avoid, seeking court intervention. Note that a failing spouse cannot execute a durable power of attorney or health care proxy if he or she is legally incompetent, in which case court intervention will be required. Also note that simply because someone has been diagnosed with dementia does not mean that they are legally incompetent.
No. The Caregiver Authorization Law allows a parent, without a court order, to share parental authority over a child’s education and healthcare with a caregiver for a period of up to two years. This is accomplished through the execution of a special affidavit.
No. A parent is allowed to delegate parental authority regarding “the care, custody, or property” of a minor child to a “temporary agent” for a period of up to 60 days. This is accomplished through the execution of a special document with a number of formal requirements.
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