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Legal Incompetence


- Featured article by LAWYERS-ONLINE.CO.ZA

The process – how to declare someone ‘legally incompetent’

How do you declare someone legally incompetent? These are common questions and the answers are quite simple.

Filing for guardianship: A guardian is someone who is chosen, either by a court or by being named in a legal document such as a will, to make decisions for someone who cannot make decisions for him or herself.

The types of decisions that a guardian might make include: giving consent to medical care or treatment; purchasing or arranging for purchase of such necessities as food, clothes, cars, household items, and other personal items; arranging for education; and / or managing finances and bank accounts.

Consulting an attorney: Discuss the matter with an attorney that deals with such issues and has the relevant experience, a specialist in their field. Take with you any relevant estate or legal documents relating to the incompetent person, including any powers of attorney or living wills .

Scheduling a Psychological Evaluation: Someone cannot be deemed incompetent until he or she is evaluated by a licensed psychological professional.

If the person does not cooperate, you may petition the court for a compulsory evaluation as part of your guardianship petition .

Submitting the evaluation to court: Attending the hearing: Guardianships need to be approved by a court order before the named person will be allowed to make any decisions on behalf of the incapacitated individual.

The court will need to learn why the person is incapacitated, and then determine the ability of the individual to make decisions.

At times, the court may order guardianships to be very narrow in their scope and duration, depending upon the condition of the individual in question.

Whoever is chosen by the court must be willing and able to perform the duties at hand, and to represent the best interests of the ward.

In selecting the guardian, the court considers the prospective guardian's character, history, physical capacity, and other relevant attributes. A potential guardian's limited education or financial resources are not disqualifying conditions in and of themselves.

This task is never an easy one but if it is for the interests of the person in question, then it needs to be done, rather soon than later.

Date: 7th November 2013

Legal Incompetence - Legal Information South Africa