According to Social Security, the number of Americans 65 and older will increase from approximately 56 million today to over 78 million by the year 2035. If you are in this group facing your senior years, it is crucial to have a plan for unexpected situations such as loss of competence. A doctor can declare someone incompetent, and the legal implications of such a declaration can affect your entire life.

Being declared incompetent by a doctor does not mean that you lose all ability to make decisions for yourself, but it does mean that you are in danger. You are in danger of a legal battle for your independence. You are at risk of facing a courtroom struggle to remain the guardian of yourself. 

How Do You Lose Your Independence?

If you have a clinical assessment that shows you have lost the capacity to make certain decisions, those who care about you may feel a need to override your choices. This can be a good thing if you need protection from something or someone. 

However, if someone wants to take advantage of your financial wellbeing, you could have an even bigger problem than just losing your independence. 

The court accepts petitions for incompetence and the appointment of a guardian. In this proceeding, a judge looks at whether you can care for and make decisions for yourself. If declared incompetent, the judge appoints a guardian to handle your financial, medical, and other decisions.

Incompetence and Incapacity

The terms “incompetence” and “incapacity” are often interchangeable. They both express a level of inability to make decisions for yourself. According to Dr. Leslie Kernistan with BetterHealthWhileAging, the court looks at these abilities when determining capacity. 

• Medical consent capacity
• Financial capacity
• Testamentary capacity
• Sexual consent capacity
• Capacity to drive
• Capacity to live independently

Petitioning the Court

When someone asks the court to declare incompetence in the state of North Carolina, they must answer how you lack sufficient capacity to manage your own affairs or make or communicate important decisions concerning:

• Self 
• Family
• Property

The petitioner must set forth the facts to show you are incompetent. These facts can include:

• Mental illness
• Senility
• Other diseases
• Injuries

The petitioner also declares whether they believe you to be competent in these areas:

• Language and Communication: Understands/participates in conversations, can read and write, understands signs such as “keep out,” “men,” “women.”
• Nutrition: Makes independent decisions regarding eating, prepares food, purchases food.
• Personal Hygiene: Bathes, brushes teeth, uses proper hygiene when using the restroom.
• Health Care: Makes and communicates choices regarding medical treatment/caregivers, notifies others of illness, follows medication instructions, reaches emergency health care
• Personal Safety: Recognizes danger and seeks assistance as needed, protects self from exploitation/personal harm.
• Residential: Makes and communicates decisions regarding residence/roommates, maintains safe shelter
• Employment: Makes and communicates decisions regarding employment, demonstrates vocational skills such as neatness and punctuality, writes or dictates application form.
• Independent Living: Follows a daily schedule, conducts housekeeping chores, uses community resources such as bank, store, post office
• Civil: Knows to contact advocate if being exploited, understands consequences of committing a crime, registers to vote
• Financial: 
  • Makes and communicates decisions about paying bills and spending discretionary money, and makes change for $1, $5, and $20
  • Makes and communicates decisions regarding management of a personal bank account, savings, investments, real estate, and other substantial assets
  • Can resist attempts at financial exploitation by others

The Court Process

Based on witness testimony, your testimony, and doctor statements, you can be declared incompetent, and a judge can appoint a guardian for you. The person making the petition can recommend someone as your guardian, and the judge will consider their recommendation. 

This court process to determine your capabilities can be exhausting and embarrassing to you and others. The person making the petition may say things about you that are hard for you to hear, much less become public knowledge about you. This expensive court process exposes your frailties to the public. You can also struggle to state your point of view in a public arena. 

How Can I Make My Own Decisions?

To prevent this very public and expensive court process from occurring, go ahead and legally declare someone to act in your best interest. If needed, the person you choose can make decisions and conduct financial matters on your behalf during your lifetime. If you become incompetent by standards that would cause you to need a guardian, your appointed durable power of attorney can make decisions for you regarding your care. 

No one else can take you to court with a petition to declare incompetence because you have already declared a durable power of attorney. This person is someone whom you trust to act for you only when necessary.

Get Help

If you need help drawing up essential legal documents to protect your independence and expressly state who will help if you need help in the future, contact us at Vail Gardner Law. We would be happy to work with you to make a plan that protects your financial, physical, and emotional well-being. Make decisions about your future now to protect your wishes for the future.