Legal Options When a Loved One Loses Mental Capacity

Life is unpredictable and there are any number of explanations for how and why an adult may lose mental capacity. An elderly parent could develop dementia or Alzheimer’s. A spouse could get into an accident and suffer a traumatic brain injury. Even long-term substance abuse could result in the deterioration of someone’s mental capacity.

Every state has its own laws and legal procedures for the appointment of a substitute decision maker for mentally incapacitated adults, and statutory definitions for legal incapacity vary. Typically, states define legal incapacity as the inability to understand or communicate information necessary to meet the essential requirements of physical health, safety or property management.

When individuals lose mental capacity to the extent they are no longer able to care for themselves, families need to be aware of their legal options.

Options Before the Loss of Capacity

Having a plan in place before one loses capacity is always a good idea. A Durable Power of Attorney can be appointed to make decisions on a person’s behalf before the loss of mental capacity.  A Durable Power of Attorney is a legal document in which a person (referred to as the principal) appoints another person (referred to as the attorney-in-fact) as a responsible agent and decision maker to legally undertake some action or business on the principal’s behalf.

The difference between an ordinary Power of Attorney and a Durable Power of Attorney is that an ordinary Power of Attorney is only legally effective when the principal still has capacity, while a Durable Power of Attorney continues to hold legal effect even after the principal is incapacitated.

A Durable Medical Power of Attorney, also referred to as a Healthcare Proxy, can also be appointed specifically to make healthcare decisions on one’s behalf in the event of incapacity. Typically, this appointment is made as part of a person’s Advance Healthcare Directive or Living Will.

Another option is to set up a Revocable Living Trust to hold assets with a relative, friend or financial institution appointed as co-trustee or successor trustee to manage one’s affairs without court intervention in the event a person becomes incapacitated.

It is important to note that all of these legal documents need to be created while an individual still has decision making capacity. Many people attempt to get Power of Attorney or Durable Power of Attorney after their loved one has become incapacitated, but at that point its too late.

Options After the Loss of Capacity

If a loved one loses mental capacity without having already appointed a substitute decision maker, there are other legal options such as filing for Guardianship, Conservatorship or a Protection Order.

While state laws vary, in most jurisdictions a Guardianship gives legal authority to make the personal, day-to-day decisions for a legally incapacitated adult, while a Conservatorship grants decision making control over the person’s financial affairs. However, some states use the term “guardianship” to refer only to cases involving minor children, while the term “conservatorship” is used in cases involving mentally incompetent or incapacitated adults.

Both Guardianships and Conservatorships require a hearing and Court Order. Typically, both require Affidavits or Certifications from two statutorily qualified physicians, or one qualified physician and one licensed practicing psychologist stating a medical opinion of mental incapacity.

Filing for an Order of Protection in superior court is an option which does not require two doctors’ reports and the other formalities necessary for Guardianships or Conservatorships. However, an Order of Protection does require some evidence of exploitation and/or abuse.

Self-determination is of supreme importance, and the alleged incapacitated person always has the right to oppose these legal proceedings, hire a lawyer and go to trial to have a judge make a determination about mental capacity and whether legal intervention is warranted.

The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.



Written by 

New Jersey lawyer turned blogger, podcaster and legal changemaker.