Hyden, Miron & Foster, PLLC Law Blog

Thursday, May 14, 2020

How Is Someone Declared Legally Incompetent?

Through the guardianship process, a guardian is appointed to an individual who is unable to make decisions on his or her own. The court must decide, based on the evidence presented, whether the individual is truly in need of a guardian. It is a very serious matter as the individual who would be appointed a guardian is set to lose many fundamental rights. In the cases of adults, the decision to pursue guardianship must be carefully weighed, but it is sometimes the only way to truly protect a person deemed incapable of meeting basic life necessities for himself or herself.

How is Someone Declared Legally Incompetent?

One of the most common reasons that a person seeks a guardianship is when that person is caring for an adult who is unable to care for themselves. You can quickly run into difficulties when you are caring for such a person but lack the legal authority to make decisions on his or her behalf. If this is the case, establishing a guardianship can help. In the State of Arkansas, a guardianship can only be established through obtaining a court order. The court order may grant the guardian the authority to make legal decisions pertaining to a person, a person’s property, or both. The authority granted to the guardian will vary based on what is needed.

In order to establish a guardianship, the person seeking the guardianship must prove that the adult, who would become the “ward,” is legally incompetent and that appointing a guardian would be in his or her best interests. In order to be declared legally incompetent, it must be established that the individual lacks sufficient capacity to manage his or her own affairs. Also, a person may be deemed legally incompetent if he or she is unable to communicate critical decisions pertaining to medical treatment and other health issues or property and financial decisions. The guardian is usually a family member or professional.

The guardianship process begins when a petition is filed with the court requesting an order of guardianship. It must then be established that the proposed ward is, in fact, incompetent. To be proven incompetent, there must be a showing that the person has a mental disability, physical disability, physical illness, alcohol dependency, chronic drug use, or another condition that renders him or her incapable of managing necessary personal matters. A professional must evaluate the individual in the guardianship case. If the ward has been evaluated by a professional within six months of the guardianship hearing, that report may be utilized to determine incapacity. Otherwise, the court will order an evaluation to be completed by a professional such as a doctor, psychologist, and/or social worker. The type of professional performing the evaluation will depend on what aspects of the ward’s abilities are being evaluated.

The court will hold a hearing to make its determination on the guardianship appointment after the evaluation has been completed. The court will receive a copy of the report evaluating the competency of the ward. Should the court find that the ward is legally incompetent, then a guardianship will be established by court order.

Guardianship Attorneys

Coming to terms that a loved one may need a guardian can be difficult, but necessary. The guardianship attorneys at Hyden, Miron & Foster will work with you about how to proceed. We will provide you with dedicated legal counsel throughout the guardianship process. Contact us today.


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