How to Legally Declare Someone as Mentally Incompetent?

Written by S. Arteta and Fact Checked by The Law Dictionary Staff  

In the United States, competency involves the mental capacity of an individual in order to participate in a legal proceeding or his ability to exercise his liberty and pursue his interest. Competence also pertains to the capability of an individual's state of mind to make decisions that involve his interests.

Competency is presumed unless there exists a reason to declare a person as mentally incompetent. There are several factors that would affect an individual's competency to make a particular decision, a particular contractual agreement, to execute an effective deed to real property, or to execute a Will.

The steps in declaring an individual as mentally incompetent are as follows:

1. File a form to declare a person as an incompetent before the Probate Court having jurisdiction over the area where the subject of the petition resides. This form shall include an application to be declared as court appointed guardian.

2. In filing the petition, the aid of a mental health or guardianship lawyer is beneficial to the petitioner. The retained counsel shall assist the petitioner in theĀ  gathering of supporting documents or evidence to strengthen your petition.

3. There must be a psychological evaluation of the person subject of the petition to be conducted by a medical practitioner. If the person sought to be declared as incompetent does not comply with a voluntary evaluation, a court order must be requested, by way of filing the proper motion, before the probate court.

4. The result of the psychological evaluation must be submitted with the application form to the Probate Court which shall proceed to determine whether or not there is sufficient ground to declare the subject as incompetent. The Probate Court shall also determine whether or not the person seeking to be appointed as guardian is suitable. The petitioner may be required by the court to post a bond with the help of financial insurance companies. The posting of the bond is required for the purpose of protecting the property and other interests of the individual sought to be proclaimed as incompetent.

5. Petitioners may have some difficulty in looking for bonding companies or insurance companies that may post bond for him. This may be due to poor credit history or criminal history. Here, your guardianship lawyer may be of help.

6. If the subject of the petition is an adult, the petitioner must contact the adult protective services which shall conduct an investigation. This is mandatory even if the petitioner does not seek to be appointed as a guardian.

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