Loune-Djenia Askew, Esq.
Aug 21, 2024
If you have concerns about an elderly relative’s mental capacity, it may be necessary to have them declared mentally incompetent to protect their estate.
Estate planning involves making important decisions about the management and distribution of assets, often including provisions for elderly relatives who may be unable to manage their affairs. If you have concerns about an elderly relative’s mental capacity, it may be necessary to have them declared mentally incompetent to protect their estate.
1. Understanding Mental Incompetence
Mental incompetence refers to a person’s inability to make sound decisions regarding their finances and property due to cognitive decline or other impairments. Declaring a relative mentally incompetent is a step that prevents potential misuse or mismanagement of assets.
2. The Role of a Lawyer in This Process
An attorney with experience in both elder law and estate planning could be essential in this situation. They will help you understand the implications of declaring someone mentally incompetent, especially in relation to their estate.
3. Collecting Evidence to Support the Claim
Gather substantial evidence of the relative’s mental incompetence. This includes medical records, evaluations from healthcare providers, and testimonies from those familiar with the relative’s condition. Through documentation the court recognizes the need for guardianship or conservatorship over the relative’s estate.
4. Filing for Guardianship or Conservatorship
Once the necessary evidence is collected, you can file a petition for guardianship or conservatorship. This legal status allows someone (often a family member) to manage the relative’s estate. Your lawyer will assist in filing the petition and representing the case in court, emphasizing the need for protecting the relative’s financial interests.
5. Attending the Court Hearing
During the court hearing, evidence will be presented to demonstrate the relative’s inability to manage their estate. The judge will consider the evidence, expert testimonies, and any existing estate plans. If the court finds the relative mentally incompetent, a guardian or conservator will be appointed to manage their estate according to legal and ethical guidelines.
6. The Responsibilities of a Guardian or Conservator
If appointed as a guardian or conservator, you’ll be responsible for managing your relative’s estate. This includes overseeing financial matters, ensuring bills are paid, and protecting assets. This role is critical in estate planning, as it ensures that the estate is preserved and distributed according to the relative’s wishes.
For more information, contact our office at Askew & Associates, P.A. by calling 954-546-2699.
Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns.