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A Difficult Decision: Declaring Your Elderly Parent Incapacitated

When an elderly parent gradually loses control of his or her faculties, it can be difficult for children to determine whether having their parent declared incapacitated is the right thing to do. The legal definition of “capacity” varies from state to state, but generally it’s the mental ability to adequately function. A judge must declare a person incompetent, and factors leading to such a decision will depend on the circumstances.

If you make the decision to have an incapacity determination and the judge agrees that your parent is no longer competent, the court will appoint a guardian/conservator. He or she will be responsible for managing your parent’s affairs. More often than not, an incapacitated person’s child is appointed guardian/conservator, but the guardian/conservator doesn’t have to be a family member.

The guardianship/conservatorship will specify if the guardian/conservator has been appointed for the management of all aspects of your parent’s life or a specific aspect of it, such as for solely financial matters.

If you’re grappling with the decision of having your parent declared incapacitated, please contact us to better understand your options. And keep in mind that, if your parent has executed durable powers of attorney for property or a living trust and durable powers of attorney for health care or a health care proxy, a guardianship/conservatorship proceeding likely isn’t necessary.

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