Life can present us with challenges that make decision-making impossible for some individuals, whether due to age, illness, or other factors. When a loved one becomes unable to make informed decisions about their personal affairs, it may be necessary to seek legal guardianship or have them declared legally incompetent. This process is complex, and many people wonder how much does it cost to have someone declared incompetent?
In this comprehensive guide, we’ll explore when someone can be declared legally incompetent, the legal steps involved, and the associated costs of pursuing such a declaration.
What Does It Mean to Be Declared Incompetent?
Legally incompetent people are unable to make their own decisions due to mental or physical illness. A multidisciplinary evaluation of the incapable person guides a superior court judge’s decision. Being legally incompetent has an impact on everything, including finances, health care, and property management.
People who are unable to perform daily tasks due to mental illness, intellectual disability, or another medical condition are frequently deemed incompetent. A judge decides whether to appoint a general guardian or an estate guardian for the incapacitated person after a petition is filed in the superior court.
The Legal Process for Declaring Someone Incompetent
Civil court proceedings must conclude before someone is declared legally incompetent. In these proceedings, the petitioner must demonstrate that the person can no longer make sound decisions. The process is step-by-step:
1. Filing a Petition
A concerned family member petitions the Superior Court to start the process. The petition must explain why the person is unable to work and include medical evidence. It is typically filed in the individual’s home county’s superior court, such as Vernon Hills or Buffalo Grove.
2. Notification and Evaluation
When filing the petition, notify the person who has been deemed unable to do something. The court will appoint a guardian ad litem to represent each party. Experts from various fields will then assess the individual’s cognitive and physical abilities. This evaluation determines whether the individual is legally incompetent.
3. Court Hearing
A superior court hearing will include multidisciplinary evaluation evidence. During the hearing, the judge will consider medical reports, family statements, and the opinions of healthcare professionals. The superior court judge will either rule that the person is legally incompetent or deny the petition based on the evidence.
4. Appointment of a Guardian
If the judge deems the individual incapable of making decisions, a general or estate guardian will be appointed. This person will make important decisions for the incapacitated person regarding money, property, and medical care.
Costs Involved in Declaring Someone Incompetent
One of the common questions people have been asking is, how much does it cost to have someone declared incompetent? The cost can vary widely based on the specific circumstances and the jurisdiction where the petition is filed.
- Filing Fees: Filing the initial petition with the superior court often involves a fee, which can range from $200 to $500, depending on the county.
- Attorney Fees: Hiring a lawyer to assist with the process is often necessary to ensure that all legal procedures are followed correctly. The cost of an attorney can vary significantly, ranging from $2,500 to $10,000, depending on the complexity of the case and the attorney’s experience.
- Evaluation Costs: A multidisciplinary evaluation is required to assess the alleged incapacitated person’s mental and physical condition. These evaluations typically cost between $500 and $2,000.
- Guardian ad Litem Fees: The court may appoint a guardian ad litem to represent the interests of the incapacitated person. The cost of the guardian ad litem is often paid by the petitioner and can range from $1,000 to $3,000.
Overall, the cost to have someone declared incompetent can add up, especially if the case is contested or requires extensive legal proceedings.
Who Can File for Legal Incompetency?
Any interested party can petition to declare someone legally incompetent. Friends, family, and HHS employees may be included. If they believe the person is in danger and can’t make decisions, healthcare professionals or social workers can start the process.
The petitioner must prove they cannot make informed decisions. This usually involves providing medical records, doctor and nurse statements, and other evidence of mental or physical incapacity.
Guardianship Options After Declaring Incompetency
A court-appointed guardian will manage the affairs of the legally incompetent. The needs of the incapacitated adult determine the type of guardianship.
- General Guardian: A general guardian who has a lot of power and manages a disabled person’s personal and financial matters. This includes health, finances, and medical decisions.
- Guardian of the Estate: An estate guardian manages the incapacitated’s finances. This person handles the person’s assets, bills, and finances.
- Standby Guardian: If the current guardian can’t do their job, a backup is chosen. This guardianship ensures consistent care, and no one else makes decisions.
Alternatives to Guardianship
Alternatives to guardianship may help a person who can’t care for themselves without being declared incompetent. These options include:
- Power of Attorney: Granting someone power of attorney can allow them to make financial and healthcare decisions on behalf of an individual without declaring them legally incompetent. The cost of getting power of attorney is often lower compared to guardianship proceedings, and it can be an effective solution for those who still have some decision-making capacity.
- Trusts: A revocable living trust may allow someone to manage their assets without a guardian. A trustee oversees assets and ensures they are used for the beneficiary.
How to Decide if Guardianship Is the Right Option
Deciding whether to pursue guardianship or declare someone legally incompetent is a difficult and emotional decision. Here are some factors to consider:
- Mental and Physical Condition: If the person has a severe mental illness, intellectual disability, or another condition that affects their ability to make decisions, guardianship may be necessary to protect their well-being.
- Financial Matters: If the person is unable to manage their personal property or finances, a guardian of the estate might be the best option to ensure their assets are properly managed.
- Family Dynamics: In some cases, family conflicts may make it challenging to determine the best course of action. It may be helpful to consult with an estate planning attorney or a mediator to explore options.
Conclusion: Protecting Your Loved Ones
Notifying someone of their legal incompetence can be difficult, but it can protect their safety and well-being. Knowing how the legal system works, how much it costs, and your options can help you through this difficult situation.
An estate planning lawyer can help you with guardianship, power of attorney, or other options.
Working with a dedicated and experienced attorney can make all the difference. Cristy J. Carbón-Gaul and her team at The Law Office of Cristy J. Carbón-Gaul are here to help you through every step of the process, ensuring your loved one is protected and their needs are met. With comprehensive estate planning and guardianship services, they provide compassionate support tailored to your family’s unique needs.
If you need assistance navigating the complexities of declaring someone legally incompetent or wish to explore the best options for your loved one, contact Cristy J. Carbón-Gaul today.
Visit Cristy J. or call (505) 899-5696 to schedule your consultation and ensure your loved ones receive the care they deserve.
FAQs on Declaring Someone Incompetent
1. How long does it take to declare someone legally incompetent?
The timeline can vary depending on the complexity of the case and the availability of the superior court. Generally, the process can take anywhere from several weeks to a few months.
2. Can an incompetent person regain competence?
Yes, in some cases, an individual may regain competence if their condition improves. A petition can be filed with the superior court to remove the guardianship if the person can demonstrate that they are once again capable of making informed decisions.
3. How much does it cost to have someone declared incompetent?
The cost to have someone declared incompetent can vary but typically includes filing fees, attorney fees, evaluation costs, and guardian ad litem fees, totaling several thousand dollars.
4. What is a guardian ad litem?
A guardian ad litem is an individual appointed by the court to represent the interests of the alleged incapacitated person during the legal proceedings. They ensure that the person’s rights are protected throughout the process.
5. What is the difference between a general guardian and a guardian of the estate?
A general guardian manages both personal and financial matters, while a guardian of the estate is only responsible for managing the financial affairs of the incompetent person.