If you have a loved one who you are worried about taking care of themselves or others and how to prove someone incompetent, might not be as simple as it sounds. Having someone declared incompetent because they are mentally ill requires that you have the proper proof and paperwork in play.
Since the courts are reluctant to take away someone’s legal rights or deny them the freedom to make choices for their own care, you will need to take significant steps to get the help you need for the one you love.
Although normally thought about as a harsh step, there are various reasons why you might want to have someone declared mentally incompetent. If you are worried about the safety of your loved ones, having them declared mentally incompetent in court will allow you to make critical care decisions about their safety and well-being. It might also be the case that you worry about them having guardianship over children or having parental rights.
If you can show that someone is mentally incompetent, then the courts can make decisions that are in the best interest of both the party you are having declared mentally incapacitated and anyone they have guardianship over.
What about injuries? Injured? Contact NYC Injury Attorneys for a free consultation!
If you have decided that you need to take someone to court for mental incompetence, keep reading to learn about the steps you must take.
- File a petition for guardianship
The first step to having someone declared legally incompetent is to file a petition to gain guardianship. You can file a petition in probate court to become their guardian, which will allow you to make decisions for them if the petition is granted.
- Hire an attorney
Since the process of having someone declared mentally incompetent can be extensive and confusing, it is a good idea to hire an attorney who specializes or who has extensive experience in the process of mental incompetency.
There are many steps involved to having someone declared mentally incompetent, and since time is probably of the essence, having a professional there to expedite the process and to ensure that your petition is passed is key to having things go uncontested and flow as smoothly as possible in your favor.
During your first consultation, you will want to bring any legal documents that are already in place, such as a living will or a power of attorney (if you have them).
- Schedule a psychological evaluation
The cornerstone of having someone declared mentally incompetent is to have them evaluated by a psychologist or psychiatrist. If the person who is the subject of the petition refuses the evaluation, then the court has the option to make the evaluation mandatory.
They might also be able to hold the person in custody for 72 hours if they fear that they might be a danger to themselves or others. During that 72 hour hold, they can order a psychological evaluation to be administered by the court.
- Submit the results to the court
Once the evaluation has been completed, you will want to submit the results to the court. The evaluation will include the psychologist’s opinion about the mental state of the person that you are petitioning to be declared mentally incompetent.
The recommendations contained in the report will help the court to determine if having them declared incompetent is necessary and warranted. You will want to submit the documents along with your petition and any other pertinent information.
- Be present at the court hearing
There will be a scheduled hearing where you will be allowed to present whatever testimony and documentation you have before the court. Meeting with the lawyer before the hearing is a good idea so that you know what to expect and that you have your testimony organized in the most effective way possible.
It is also critical so that you know what the court will expect and to ensure that you aren’t missing any information that can lead the loss of your case.
Having someone you love declared mentally incompetent is a highly emotional and stressful event. Make sure that you have the right professionals involved in the case so that you can help your loved one.
If you believe a loved one or relative is a danger to themselves, the public or to other people you love, it is your responsibility to make sure that they are in the care of someone who will protect them and the others that you love.