With an aging population, more children are facing elderly parents with deteriorating mental states who can no longer manage day-to-day activities. At some point, you may need to make the difficult decision to have a parent declared incapacitated. Knowing the answers to two key questions can help you determine whether the time has come.
- What’s the difference between capacity and incapacity? The legal definition of “capacity” varies from state to state, but generally it’s the mental ability to adequately function. A person is presumed competent unless an adjudication process determines otherwise. That is, a judge must declare a person incompetent.
One barometer of whether someone is able to adequately function is the person’s ability to understand basic financial matters. Another is whether a person is able to attend to his or her own health needs.
- What’s the role of a guardian/conservator? If the judge agrees that your parent is no longer competent, the court will appoint a guardian/conservator who will be responsible for managing your parent’s affairs. More often than not, an incapacitated person’s child is appointed, but the guardian/conservator doesn’t have to be a family member. In some states, a person can designate their guardian/conservator.