Alabama
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Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian for incapacitated persons (lacking sufficient understanding
or capacity to make or communicate responsible decisions) or conservator for persons
unable to manage property and business affairs effectively.
Terms for Person Appointed: Guardian, Conservator
Ala. Code §§ 26-2A-20, 26-2A-102, 26-2A-108, 26-2A-130(c), 26-2A-148
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a limited guardian or limited conservator requires a case-by-case
analysis to determine if the beneficiary is unable to handle benefit payments.
Terms for Person Appointed: Limited Guardian, Limited Conservator
Ala. Code §§ 26-2A-105(c), 26-2A-148(a).
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Alaska
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Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a guardian for an incapacitated person does not necessarily constitute
a finding of legal incompetence. The guardianship plan must be individually analyzed
to determine if legal competency was found. However, appointment of a conservator
to manage the estate and or affairs of a protected person constitutes a finding of
legal incompetence.
Term for Person Appointed: Guardian, Full Guardian, Conservator
See Alaska Stat. §§ 13.26.005, 13.26.090, 13.26.113, 13.26.116, 13.26.165
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency:
Appointment of a partial guardian who has fewer than all of the legal duties and powers
of a full guardian.
Term for Person Appointed: Partial Guardian
See Alaska Stat. § 13.26.113
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American Samoa
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Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: Appointment of a guardian for a person mentally or physically incompetent to manage
their own property.
Term for Person Appointed: Guardian
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a guardian not made under American Samoa Code Annotated §§ 40.0401
- 40.0410.
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Arizona
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: Appointment of a guardian for an incapacitated person. An incapacitated person is
one who is impaired by reason of mental illness, mental deficiency, mental disorder,
physical illness or disability, chronic use of drugs, chronic intoxication or other
cause (except minority), to the extent that they lack sufficient understanding or
capacity to make or communicate responsible decisions concerning their person.
Term for Person Appointed: Guardian
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a limited guardian. The court order may specify limitations on the
guardian’s powers and should be reviewed to determine whether it contains a finding
of legal incompetency or otherwise indicates the need for a payee.
Term for Person Appointed: Limited Guardian
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Arkansas
|
Conditions Under Which Order May Constitute a Finding of Legal Incompetency:
Appointment of a guardian for an incapacitated person. An incapacitated person is:
(1) a person impaired by reason of a disability such as mental illness, physical illness,
chronic use of drugs, or chronic intoxication, to the extent of lacking sufficient
understanding or capacity to make or communicate decisions to meet essential requirements
for their health or safety or to manage their estate; (2) a person in the Department
of Human Service’s custody as an endangered or impaired adult, 18 years of age or
older; (3) a person under age 18 and whose disabilities have not been removed; (4)
a person confined or detained by a foreign power; (5) a person who has disappeared;
or (6) a person who is under age 21, has a guardianship to continue up to 21 years
of age, and receives a guardianship subsidy paid for or approved by the Department
of Human Services. Because the law states that “an incapacitated person for whom a
guardian has been appointed is not presumed to be incompetent and retains all legal
and civil rights except those which have been expressly limited by court order or
have been specifically granted by order to the guardian by the court,” the court order
appointing the guardian for the incapacitated person must be carefully reviewed to
determine whether it contains a finding of legal incompetency or whether it otherwise
indicates the need for a payee.
Terms for Person Appointed: Guardian, Temporary Guardian (90 days). See Ark. Code Ann. §§ 28-65-101, 28-65-104, 28-65-106, 28-65-201, 28-65-218 (2016)
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of conservator due to advanced age or physical disability. The court
order appointing a conservator due to advanced age or physical disability must be
carefully reviewed to determine whether it contains a finding of legal incompetency
or whether it otherwise indicates the need for a payee.
Terms for Person Appointed: Conservator
See Ark. Code Ann. §§ 28-67-103, 28-67-105, 28-67-108 (2016)
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California
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: Appointment of a conservator of the person or a conservator of the estate (or both)
where there is a finding of incompetency. Generally, the appointment of a conservator
of the person is for a person who is unable to provide properly for their personal
needs, and the appointment of a conservator of the estate is for the person who is
substantially unable to manage their own financial resources or resist fraud or undue
influence.
Terms for Person Appointed: Conservator of the Person, Conservator of the Estate, Conservator of the Person &
Estate.
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a limited conservator for a developmentally disabled adult. The conservatee
is not presumed to be incompetent, and the court order shall define the powers and
duties of the limited conservator.
Terms for Person Appointed: Limited Conservator
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Colorado
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian. Guardians are appropriate only for incapacitated persons.
Terms for Person Appointed: Guardian, Temporary Substitute Guardian
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a conservator or an emergency guardian or the entry of a protective
order is not a determination of legal incompetence.
Appointment of a limited guardian requires a case-by-case analysis to determine if
the beneficiary is unable to handle benefit payments.
Term for Person Appointed: Conservator, Limited Conservator, Limited Guardian, Emergency Guardian
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Connecticut
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: A court will involuntarily appoint a conservator of the estate if it finds the individual
is incapable of managing their financial affairs or benefits. The court will involuntarily
appoint a conservator of the person if it finds the individual is incapable of caring
for themselves. The order will specify each duty and authority assigned to the conservator.
The individual retains all rights and authority not expressly assigned to the conservator.
A court will appoint a plenary (full) guardian when it finds that the severity of
the individual’s intellectual disability makes them totally unable to meet essential
requirements for physical health or safety and totally unable to make informed decisions
about matters related to their care.
Terms for Person Appointed: Conservator of the Person, Conservator of the Estate, Plenary Guardian
See Conn. Gen. Stat. Ann. §§ 45a-650, 45a-676 (2016)
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Competent individuals may also request the appointment of a conservator to manage
their financial affairs, but such an appointment is not a judicial finding of legal
incompetency. Look at the specific findings made by the court to determine if the
conservatorship is voluntary or based on legal incompetency.
A court may also appoint a limited guardian, based on a finding that the individual
is able to make some, but not all, informed decisions about matters related to their
care. Look at the order to determine the scope of the individual’s capacity to make
decisions.
Terms for Person Appointed: Conservator of the Person, Conservator of the Estate, Limited Guardian
See Conn. Gen. State. Ann. §§ 45a-646, 45a-676 (2016)
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Delaware
|
Conditions Under Which Order May Constitutes a Finding of Legal Incompetency: Appointment of a guardian does not necessarily constitute a finding of legal incompetence.
Review the court order or contact the court, if necessary, to determine if legal incompetency
was found.
Term for Person Appointed: Guardian, Guardian of the Person
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a guardian of the property does not constitute a finding of legal
incompetence, although it may indicate the need for a representative payee.
Term for Person Appointed: Conservator, Guardian of the Property
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District of Columbia
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Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a guardian or conservator for an “incapacitated individual” does not
automatically constitute a finding of legal incompetence. An individual found to be
incapacitated shall retain all legal rights and abilities other than those expressly
limited or curtailed in the order of appointment of a guardian or in a protective
order. Review the court order or contact the court, if necessary, to determine if
legal incompetency was found.
Term for Person Appointed: Guardian, General Guardian, Limited Guardian, Conservator, Limited Conservator
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Florida
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Order appointing a plenary guardian of an incapacitated person (one who lacks the
capacity to manage property or meet essential health and safety requirements).
Term for Person Appointed: Guardian, Plenary Guardian, Public Guardian
Fla. Stat. Ann. §§ 393.12, 744.102, 744.2006(2), 744.2007, 744.3215, 744.331, 744.361.
Conditions Under Which Order May Not Constitute Legal Incompetency: Order appointing a limited guardian of an incapacitated person or a guardian advocate
of a developmentally disabled person for whom the court order does not specifically
delegate rights affecting the ward’s ability to manage finances and property. The
order will specify each right the incapacitated person is incapable of exercising
and should be reviewed to determine if the court found a lack of capacity affecting
the ability to manage benefits.
Term for Person Appointed: Limited Guardian, Limited Public Guardian, Conservator, Guardian of the Property,
Guardian Advocate
Fla. Stat. Ann. §§ 744.102, 744.2005(2), 744.3085, 744.331, 744.361.
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Georgia
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian or conservator (or one of each) for an adult lacking sufficient
capacity to make or communicate significant responsible decisions concerning health
or safety. Appointment of a conservator for an adult lacking sufficient capacity to
make or communicate significant responsible decisions concerning the management of
property. Order(s) should be reviewed to determine whether the lack of capacity and
delegated rights affect the incapacitated adult’s ability to manage benefits.
Terms for Person Appointed: Guardian, Conservator, Emergency Conservator, Emergency Guardian, Judge of the Probate
Court (for amounts less than $15,000.00), County Guardian, Public Guardian, DVA Guardian
Ga. Code Ann. §§ 29-1-1, 29-4-1, 29-5-1, 29-6-1, 29-7-4, 29-10-1.
Conditions Under Which Order May Not Constitute Legal Incompetency: Appointment of a guardian or conservator where an incapacitated adult may retain
the ability to manage benefits.
Terms for Person Appointed: Guardian, Conservator, Judge of the Probate Court (for amounts less than $15,000.00),
County Guardian, Public Guardian, DVA Guardian
Ga. Code Ann. §§ 29-1-1, 29-4-1, 29-5-1.
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Guam
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: Appointment of a guardian for an insane or incompetent individual. An incompetent
person is anyone who by reason of old age, disease, weakness of mind or other cause,
is unable, unassisted, to properly manage and take care of themselves or their property.
Term for Person Appointed: Guardian, General Guardian, Special Guardian
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Hawaii
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian or conservator for an incapacitated person. “Incapacitated
person” means an individual who, for reasons other than being a minor, is unable to
receive and evaluate information or make or communicate decisions to such an extent
that the individual lacks the ability to meet essential requirements for physical
health, safety, or self-care, even with appropriate and reasonably available technological
assistance.
Term for Person Appointed: Guardian of the Person, Conservator of the Estate
Conditions Under Which Order May
Not Constitute a Finding of Legal Incompetency: Appointment of a guardian, which specifies areas in which the ward shall retain the
power to make and carry out decisions concerning themselves.
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Idaho
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: Appointment of a general guardian or guardian with full powers for an incapacitated
person. Incapacitated person is one who is impaired, except by minority, to the extent
that they lack sufficient understanding or capacity to make or communicate responsible
decisions concerning their person. The term shall not refer to a developmentally disabled
person, as there is a separate process for handling guardianships for persons with
developmental disabilities. For an incapacitated person who is unable to manage their
property and affairs effectively, appointment of a conservator constitutes a finding
of legal incompetency. For a developmentally disabled person,[1] appointment of a total guardian or total conservator constitutes a finding of legal
incompetency.
Term for Person Appointed:
(for incapacitated persons):Guardian with full powers, General Guardian, Conservator,
Limited Conservator
See Idaho Admin. Code §§ 15-5-101, 15-5-303, 15-5-304, 15-1-201, 15-13-102, 15-5-420,
15-5-426
(for developmentally disabled person):
Total Guardian, Total Conservator
See Idaho Admin. Code §§ 66-402, 66-404, 66-405
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency:
For an incapacitated person, appointment of a limited guardian who has fewer than
all of the legal duties and powers of a general guardian. For a developmentally disabled
person, appointment of a partial guardian who may have fewer than all of the legal
duties and powers of a total guardian.
Term for Person Appointed:
(for incapacitated persons): Limited Guardian
See Idaho Admin. Code § 15-5-303
(for developmentally disabled persons): Partial Guardian
See Idaho Admin. Code § 66-404
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Illinois
|
Conditions Under Which Order May Indicate a Need
for a Payee: A court may appoint a plenary guardian for a person with a disability. Specifically,
the court may appoint a plenary guardian of the person or estate or both if clear
and convincing evidence demonstrates that, because of the person’s disability, theyare
totally without capacity to make or communicate responsible decisions concerning the
care of theirperson or to manage their estate or financial affairs.
A person will be adjudged a “person with a disability” where clear and convincing
evidence demonstrates that: (1) due to mental deterioration, physical incapacity,
mental illness, or developmental disability the individual is not able to manage their
person or estate; (2) due to gambling, idleness, debauchery, or excessive use of intoxicants
or drugs, the individual so spends or wastes their estate as to expose themselves
or their family to want or suffering; or (3) the individual is diagnosed with fetal
alcohol syndrome or fetal alcohol effects.
Terms for Person Appointed: Plenary Guardian, Plenary Guardian of the Person, Plenary Guardian of the Estate
755 Ill. Comp. Stat. Ann. 5/1-2.08, 5/11a-2, 5/11a-3, 5/11a-12
Conditions Under Which Order May
Not Constitute Legal Incompetency:(1) A court may appoint a limited guardian of the person or estate or both where clear
and convincing evidence demonstrates that an individual adjudged to be a person with
a disability (as defined above), due to their disability, lacks some but not all of
the capacity to make or communicate responsible decisions concerning the care of their
person or to manage their estate or financial affairs.
(2) A court may appoint a temporary guardian where there is a need for the immediate
welfare and protection of an alleged person with a disability or their estate. A temporary
guardian has the limited powers and duties of a guardian of the person or estate,
which are specifically enumerated in the court order.
(3) The court may appoint a standby guardian (including a successor standby guardian)
to act when the predecessor guardian dies or is no longer willing or able to make
and carry out day-to-day decisions concerning the person with a disability. The order
appointing the standby guardian will apply the same standards to a standby guardian’s
appointment as used in determining the suitability of a limited or plenary guardian.
Review the order appointing the standby guardian to determine if the appointment is
for a plenary or limited guardianship.
(4) The court may appoint a successor guardian upon the death, incapacity, resignation,
or removal of a guardian of the estate or person of a living ward. The powers and
duties are the same as those of the predecessor guardian unless modified by the court.
Review the order appointing a successor guardian to determine if the appointment is
for a plenary or limited guardianship.
(5) The guardian of a person with a disability may appoint, without court approval,
a short-term guardian to take over the guardian’s duties when the guardian is unavailable
or unable to carry out those duties. Because a short-term guardian is appointed by
an existing guardian, such appointment does not constitute a finding of legal incompetence.
(6) The parent of a person with a disability may designate by will a person or corporation
to be appointed as a guardian or successor guardian of a person with a disability
upon the parent’s death (testamentary guardian). If a conservator (under prior law)
or guardian is acting at the time of the parent’s death, the designation of the testamentary
guardian becomes effective upon the death, incapacity, resignation or removal of the
existing conservator or guardian. Review the court order appointing a testamentary
guardian to determine if it is for a plenary or limited guardianship.
Terms for Person Appointed: Limited Guardian, Limited Guardian of the Person, Limited Guardian of the Estate,
Temporary Guardian, Standby Guardian, Successor Standby Guardian, Successor Guardian,
Short-Term Guardian, Testamentary Guardian
755 Ill. Comp. Stat. Ann. 5/1-2.08, 5/1-2.17, 5/1-2.23, 5/1-2.24, 5/11a-2, 5/11a-3,
5/11a-3.1, 5/11a-3.2, 5/11a-4, 5/11a-12, 5/11a-15, 11a-16, 5/11a-18.2, 5/11a-18.3
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Indiana
|
Conditions Under Which Order
Constitutes a Finding of Legal Incompetency: A court must adjudicate that a person is an incapacitated person before it appoints
a guardian. In other words, any guardianship under Indiana law constitutes a finding
of incompetency. A “guardian” includes a limited guardian, successor guardian, temporary
guardian, and standby guardian. The terms guardian and conservator are interchangeable.
An “incapacitated person” is an individual who: (1) cannot be located upon reasonable
inquiry; (2) has a developmental disability; or (3) because of an incapacity such
as insanity, mental illness, mental deficiency, physical illness, infirmity, habitual
drunkenness, excessive use of drugs, incarceration, confinement, detention, duress,
fraud, or undue influence of others, is unable to provide self-care and/or manage
their property, in whole or in part.
NOTE: A court may appoint a “volunteer advocates for seniors and incapacitated adults
program” to serve as a guardian for an incapacitated person. A “volunteer advocates
for seniors and incapacitated adults” provides reports and recommendations under the
supervision of the program. The order should still indicate that the program is being
appointed as a guardian, but familiarity with these terms is useful for reviewing
such orders.
Terms for Person Appointed: Guardian, Limited Guardian, Successor Guardian, Temporary Guardian, Standby Guardian,
Conservator
Ind. Code §§ 29-3-1-6, 29-3-1-7.5, 29-3-1-15.5, 29-3-1-17, 29-3-3-4, 29-3-3-7, 29-3-5-2,
29-3-5-3, 29-3-8.5-1, 29-3-8.5-3, 29-3-12-4
Conditions Under Which Order May Not Constitute a Finding of
Legal Incompetency: An adult may voluntarily enter into a supported decision making agreement with a
supporter who agrees to help the adult with making, communicating, and effectuating
life decisions. Such an agreement is not evidence of incapacity.
Term for Person Appointed: Supporter
Ind. Code §§ 29-3-14-1 to 29-3-14-4, 29-3-14-8
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Iowa
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: There is no automatic presumption of complete incompetency or determination of unsound
mind. The court order appointing a guardian includes a finding that the decision-making
capacity of the individual is so impaired that they are unable to care for their safety
or to provide for necessities such as food, shelter, clothing, or medical care without
which physical injury or illness may occur. The court will appoint the least restrictive
guardianship possible. The court order may also state that the guardian’s appointment
is in the best interest of the individual. All orders of guardianship must be read
thoroughly and further guidance should be requested if the order is unclear.
Term for Person Appointed: Guardian
Conditions Under Which
Order May
Not Constitute a Finding of Legal Incompetency: An order appointing a guardian or conservator that does not include a finding of
incompetency must be reviewed and court contact made, if necessary, to determine if
legal incompetency was found.
Term for Person Appointed: Limited Guardian, Temporary Guardian, Standby Guardian, Conservator, Limited Conservator,
Temporary Conservator, Standby Conservator
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Kansas
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finds that the individual is an adult or minor with an impairment in
need of a guardian or a conservator, or both. Under those circumstances, the individual’s
ability to receive and evaluate relevant information, or to effectively communicate
decisions, or both, even with the use of assistive technologies or other supports,
is impaired such that the person lacks the capacity to manage such person's estate,
or to meet essential needs for physical health, safety or welfare, and who is in need
of a guardian or a conservator, or both.
Term for Person Appointed: Guardian, Conservator
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency:
The court order restricts the duties, powers, and responsibilities of the guardian
and/or conservator. For instance, if the court appoints a temporary or limited guardian
or conservator. Review the court order and contact the court, if necessary, to determine
if legal incompetency was found.
Terms for Person Appointed: Limited Guardian, Limited Conservator, Temporary Guardian, Temporary Conservator,
Standby Guardian, Ancillary Conservator, Standby Conservator
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Kentucky
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: Court order finds the individual totally disabled to manage financial affairs or
totally disabled to manage personal affairs (if the court order does not appoint a
guardian or conservator, however, the disability finding has no legal effect). Court
orders grants curatorship (not of/for a convict) for a person who has deemed themselves
unfit to manage their person or property by reason of advanced age or physical disability.
Terms for Person Appointed: Guardian, Conservator, Curator (not Curator of/for convict), Testamentary Guardian,
Testamentary Conservator, Standby Guardian, Standby Conservator
Ky. Rev. Stat. §§ 387.510, 387.590, 387.660, 387.690, 387.700, 387.750
Conditions Under Which Order May Not Constitute Incompetency: Court order finds individual partially disabled. Review the court order and contact
the court, if necessary, to determine if legal incompetence was found.
Terms for Person Appointed: Limited Guardian, Limited Conservator, Testamentary Limited Guardian, Testamentary
Limited Conservator, Standby Limited Guardian, Standby Limited Conservator
Ky. Rev. Stat. §§ 387.510(2), (4), 387.590, 387.690, 387.750
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Louisiana
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: Appointment of a curator for a full interdict. A court orders the full interdiction
of a person where the court order finds, due to an infirmity, that a person of the
age of majority or an emancipated minor is unable consistently to make reasoned decisions
regarding the care of their person and property, or to communicate those decisions,
and whose interests cannot be protected by less restrictive means.
Term for Person Appointed: Curator
See La. Civ. Code Ann. arts. 389, 392, 395; La. Code Civ. Proc. Ann. arts. 4551, 4561
(2016)
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a curator or limited curator for a person the court has found to be
a limited interdict. The court appointing a curator or limited curator for a limited
interdict order must be carefully reviewed to determine whether it contains a finding
of legal incompetency or whether it otherwise indicates the need for a payee.
Terms for Person Appointed: Curator, Limited Curator
See La. Civ. Code Ann. arts. 390, 392, 395; La.Code Civ. Proc.Ann.arts. 4551, 4551, 4561
(2016)
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Maine
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: Under Maine law, a legally incompetent or “incapacitated person” is an adult who
is unable to receive and evaluate information or make or communicate informed decisions
to such an extent that they lack the ability to meet essential requirements for physical
health, safety, or self-care, even with reasonably available appropriate technological
assistance.
Two types of court actions constitute a finding of legal incompetency: (1) establishment
of full guardianship (i.e., appointment of a guardian who is empowered to make all
decisions about another individual’s personal affairs under Maine law); and/or (2)
establishment of full conservatorship (i.e., appointment of a conservator who is empowered
to make all decisions about another individual’s property or financial affairs under
Maine law).
NOTE: The court will issue Letters of Office upon the acceptance of the appointment
of a guardian or conservator that will identify any limitations on the guardian’s
or conservator’s powers. There should be no limitations with the establishment of
a full guardianship or full conservatorship.
Terms Used In Letters of Office: Full Guardianship, Full Conservatorship
See Me. Rev. Stat. tit. 18-C, §§ 1-201, 5-102, 5-108, 5-301, 5-401(2)(A) (2019)
Conditions Under Which
Order May Not Constitute a Finding of
Legal Incompetency: When the establishment of a guardianship or conservatorship is limited—e.g., as with
a limited guardianship, limited conservatorship, protective arrangement, or another
less restrictive alternative to a full guardianship or full conservatorship—it may
or may not show that the individual lacks the ability to meet essential requirements
for physical health, safety, or self-care. In such situations, legal competency must
be evaluated on a case-by-case basis.
Terms Used In Letters of Office: Limited Guardianship, Limited Conservatorship, Protective Arrangement
See Me. Rev. Stat. tit. 18-C, §§ 5-301(2), 5-401(3) (2019)
|
Maryland
|
Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a guardian of the person is not evidence of incompetency of the disabled
person (MD C s13-706). Guardianship appointments must be individually analyzed and
court contact will be required to determine if legal incompetency was found.
An appointment of a guardian of person is based on a finding that a person lacks sufficient
understanding or capacity to make or communicate responsible decisions concerning
their person, including provisions for health care, food, clothing, or shelter, because
of any mental disability, disease, habitual drunkenness, or addiction to drugs, and
that no less restrictive form of intervention is available which is consistent with
the person’s welfare and safety. MD code s13-705
Terms for Person Appointed: Guardian of the Person
Conditions Under Which Order May
Not Constitute a Finding of Legal Incompetency: A court order appointing a guardian of an individual's property has no bearing on
the issue of capacity of the alleged disabled person to care for their own person.
Analyze each case individually and contact the court if you need more information
to determine the need for a representative payee.
Terms for Person Appointed: Guardian of the Property
|
Massachusetts
|
Conditions Under Which Order
May Constitutes a Finding of Legal
Incompetency:
A court may appoint a plenary (full) guardian for an incapacitated person, who is
defined as having a clinically diagnosed condition that results in an inability to
receive and evaluate information or make or communicate decisions to such an extent
that the individual lacks the ability to meet essential requirements for physical
health, safety, or self-care, even with appropriate technological assistance. A guardian
protects the person only, not the person’s property. A full/plenary guardianship generally
removes from an incapacitated person all personal decision-making responsibility and
authority.
A court may also appoint an unlimited conservator for a person to be protected, based
in part on the individual’s inability to manage property and business affairs effectively
because of a clinically diagnosed impairment in the ability to receive and evaluate
information or make or communicate decisions, even with the use of appropriate technological
assistance. A conservator protects the person’s property and business affairs. A full/plenary
conservatorship generally removes from a person to be protected all control over their
assets.
Terms for Persons Appointed: Guardian, Conservator
See Mass. Gen. Laws Ann. ch. 190B, §§ 5-306, 5-401 (2009)
Conditions Under Which Order May Not Constitute a Finding of
Legal Incompetency: Appointment of a limited guardian or conservator requires a case-by-case analysis
to determine if the beneficiary is unable to handle benefit payments. The concept
of limited guardianship or conservator allows the Court to address specific areas
of incapacity and tailor guardianship decrees (letters) to meet an individual’s unique
circumstances. Individuals may be competent for one purpose and not competent for
another. For example, if appropriate, a guardianship may be limited or apply only
to medical treatment decisions.
Terms for Persons Appointed: Limited Guardian, Limited Conservator, Temporary Guardian, Temporary Conservator
See Mass. Gen. Laws. Ann. ch. 190B, §§ 5-306, 5-401, 5-412A (2009)
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Michigan
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: (1) A court may appoint a plenary guardian of the person or estate or both if it
finds by clear and convincing evidence that the individual is developmentally disabled
and is totally without capacity to care for themselves or their estate. (2) A court
may appoint a full guardian if it finds by clear and convincing evidence that the
individual is incapacitated and is totally without capacity to care for themselves.
Terms for Person Appointed: Plenary Guardian of the Person or Estate or Both, Full Guardian
Mich. Comp. Laws Ann. §§ 330.1618, 700.5306
Conditions Under Which Order May
Not Constitute a Finding of Legal Incompetency: (1) A court may appoint a partial guardian if it finds by clear and convincing evidence
that the individual is developmentally disabled and lacks the capacity to do some,
but not all, of the tasks necessary to care for themselves or theirestate. The appointment
of a partial guardian does not constitute a finding of legal incompetence or incapacity
except in those areas specified by the court.
(2) A court may appoint a limited guardian if it finds by clear and convincing evidence
that the individual is incapacitated and lacks the capacity to do some, but not all,
of the tasks necessary to care for themselves.
(3) If an emergency exists, a court may appoint a temporary guardian for either a
developmentally disabled or an incapacitated individual. The temporary guardian only
has the powers and duties specifically enumerated by court order.
(4) A parent who is the guardian of an adult child with a developmental disability
may appoint a testamentary guardian by will (except when a standby guardian has been
designated). The testamentary guardian has the same powers as those of the initially
appointed guardian. Review the court order creating or modifying the initial guardianship
to determine what type it was. Similarly, a parent who is the guardian of an unmarried
legally incapacitated individual or a spouse who is the guardian of a married legally
incapacitated individual may appoint by will or other writing a guardian of the legally
incapacitated individual. The statute does not indicate what type of guardian is appointed.
(5) A standby guardian may be designated by the court for a developmentally disabled
individual, and their appointment becomes effective upon the death, incapacity, or
resignation of the initially appointed guardian. The standby guardian has the same
powers as those of the initially appointed guardian. Review the court order creating
or modifying the initial guardianship to determine what type it was.
(6) A conservator may be appointed where an individual is unable to manage their property
or business affairs due to mental illness or deficiency, physical illness or disability,
chronic use of drugs or intoxication, confinement, detention by a foreign power, or
disappearance. A conservator may also be appointed when an individual who is mentally
competent has requested one because of age or physical infirmity. A limited conservator
or special conservator has authority over only specified portions of the individual’s
property.
Terms for Person Appointed: Partial Guardian, Limited Guardian, Temporary Guardian, Testamentary Guardian, Standby
Guardian, Conservator, Limited Conservator, Special Conservator
Mich. Comp. Laws Ann. §§ 330.1100, 330.1489, 330.1540, 330.1600, 330.1607, 330.1618,
330.1620, 330.1640, 330.1642, 700.1105, 700.5301, 700.5306, 700.5311-700.5314, 700.5401,
700.5408, 700.5412, 700.5419
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Minnesota
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: (1) A court may appoint a guardian if it finds by clear and convincing evidence that
an individual is an incapacitated person and that their needs cannot be met by less
restrictive means. The appointed guardian may be a limited guardian or an unlimited
guardian. The court may also appoint an additional guardian to serve immediately or
upon some designated event.
An incapacitated person is a person who, for reasons other than being a minor, (1)
lacks sufficient understanding or capacity to make personal decisions; and (2) is
unable to meet personal needs for medical care, nutrition, clothing, shelter, or safety,
even with appropriate technological and supported decision making assistance. (2)
If the court finds that an appointed guardian is not effectively performing their
duties, it may appoint a temporary substitute guardian for up to six months. The temporary
substitute guardian has the same powers as the previous guardian (i.e., unlimited
or limited).(3) The court may appoint a successor guardian in the event of a vacancy
or make the appointment prior to a vacancy, to serve when a vacancy occurs. A successor
guardian succeeds to the predecessor’s powers.
Terms for Person Appointed: Guardian, Unlimited Guardian, Limited Guardian, Additional Guardian, Temporary Substitute
Guardian, Successor Guardian
Minn. Stat. §§ 524.5-102, 524.5-112, 524.5-303, 524.5-310, 524.5-312
Conditions Under Which Order
May Not Constitute a Finding of Legal
Incompetency: (1) An individual’s parent (if the individual is unmarried) or spouse (if the individual
is married) may appoint a guardian for the individual by will or other writing. Such
an appointment is not a determination of incapacity, as the parent or spouse need
only believe that the individual is an incapacitated person. The appointment must
be confirmed by the court, but such confirmation is not a determination of incapacity.
(2) A court may appoint an emergency guardian where no one else has authority and
willingness to act in the circumstances and following the procedures for appointment
of a guardian would likely result in substantial harm to the respondent’s welfare.
The appointment of an emergency guardian is not a determination of incapacity.
(3) A court may appoint a limited or unlimited conservator where an individual is
unable to manage their property and business affairs. The court may also appoint an
additional conservator to serve immediately or upon some designated event. Further,
the court may appoint an emergency conservator, temporary substitute conservator,
or successor conservator. The appointment of any type of conservator is not a determination
of incapacity.
Terms for Person Appointed: Guardian, Emergency Guardian, Conservator, Unlimited Conservator, Limited Conservator,
Additional Conservator, Emergency Conservator, Temporary Substitute Conservator, Successor
Conservator
Minn. Stat. §§ 524.5-102, 524.5-301, 524.5-302, 524.5-311, 524.5-401, 524.5-409
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Mississippi
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order appointing a guardian for an adult person.
Terms for Person Appointed: Guardian, Clerk of the Chancery Court
Miss. Code Ann. §§ 93-13-15, 93-13-21, 93-13-121, 93-13-125, 93-13-129
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court appointment of a conservator for reasons of advanced age, physical incapacity,
or mental weakness. Review the court order for a finding regarding incompetency. Contact
the court if you need more information to determine the need for a representative
payee.
Terms for Person Appointed: Conservator
Miss. Code Ann. §§ 93-13-251, 93-13-255, 93-13-259
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Missouri
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency:
Letters of guardianship may be issued when the court finds a person is incapacitated.
Incapacitated is defined as being unable, due to a physical or mental condition, to
receive and evaluate information or to communicate decisions to such an extent that
the individual lacks capacity to meet essential requirements for food, clothing, shelter,
safety or other care such that serious physical injury, illness, or disease is likely
to occur.
Letters of conservatorship may be issued when the court finds a person is disabled.
Disabled is defined as being unable, due to a physical or mental condition, to receive
and evaluate information or to communicate decisions to such an extent that the person
lacks ability to manage their financial resources.
A person who has been adjudicated incapacitated or disabled or both shall be presumed
to be incompetent. A person who has been adjudicated partially incapacitated or partially
disabled or both shall be presumed to be competent
Terms for Person Appointed: Guardian, Conservator
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: When the court finds a person partially incapacitated or partially disabled or both,
that individual is presumed to be competent. The court may appoint a limited guardian
or limited conservator. Review the letters of appointment or court order carefully
and request additional information from the court, if necessary.
Terms for Person Appointed: Limited Guardian, Limited Conservator
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Montana
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: None.
An incapacitated person for whom a guardian has been appointed is not presumed to
be incompetent and retains all legal and civil rights except those that have been
expressly limited by court order or have been specifically granted to the guardian
by the court. Therefore, it is always necessary to examine the order of appointment
to determine if the beneficiary is unable to handle benefit payments.
Terms for Person Appointed: Full Guardian, Limited Guardian
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Nebraska
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: The court order appoints a guardian for an incapacitated person. An incapacitated
person means any person who is impaired by reason of mental illness, mental deficiency,
physical illness or disability, chronic use of drugs, chronic intoxication, or other
cause (except minority) to the extent that the person lacks sufficient understanding
or capacity to make or communicate responsible decisions concerning themselves. However,
when finding that a guardianship should be created, the guardianship will be limited
unless the court finds by clear and convincing evidence that a full guardianship is
necessary.
Terms for Person Appointed: Guardian
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order appointing a limited, temporary, or standby guardian or conservator,
whose duties are specified in the letters of appointment of the guardian or conservator,
or appointing a guardian or conservator for a specific time or purpose.
Analyze each case individually and contact the court if you need more information
to determine legal competency.
Terms for Person Appointed: Limited Guardian, Temporary Guardian, Conservator, Standby Guardian Limited Conservator,
Temporary Conservator, Standby Conservator
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Nevada
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: A court order finds the beneficiary incompetent. An incompetent person includes any
person who, by reason of mental illness, mental deficiency, advanced age, disease,
weakness of mind or any other cause, is unable, without assistance, to properly manage
and take care of themselves or their property
Terms for Person Appointed: Guardian, Guardian of the Person, Guardian of the Estate, or Guardian of the Person
and Estate, General Guardian, Guardian ad Litem
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: The court will appoint a special guardian if it finds that the person for whom a guardian
is sought is of limited capacity and in need of a special guardian. The special guardian
has the powers set forth in the court’s order. The court will not appoint a guardian
for a person whom the court finds competent and not in need of a guardian.
Terms for Person Appointed: Special Guardian
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New Hampshire
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order appointing a guardian is also a finding that the person is legally incapacitated
(i.e., the person lacks the capacity to care for them or herself or their estate).
Terms for Person Appointed: Guardian of the Person, Guardian of the Estate
See N.H. Rev. Stat. Ann. § 464-A
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order appointing a conservator. Such appointments are voluntarily requested
by individuals who believe they are unfit to manage their property or financial affairs.
They do not reflect a court finding of legal incompetency.
Terms for Person Appointed: Conservator, Temporary Guardian, Guardian Ad Litem (does not have same powers as Guardian)
See N.H. Rev. Stat. Ann. § 464-A
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New Jersey
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: A court order finds the person incapacitated and appoints a general guardian. An incapacitated
individual is a person who is impaired by reason of mental or physical illness or
disability, chronic use of drugs, chronic alcoholism, or other cause (except minority)
to the extent that the individual lacks sufficient capacity to govern themselves and
manage their affairs.
Terms for Person Appointed: General Guardian, Plenary Guardian, Testamentary Guardian
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order finds the person lacks capacity to do some, but not all, of the tasks
necessary for self-care. A court order appointing a conservator or guardian ad litem.
Review the court order to see whether it indicates an incapability of managing financial
affairs. Contact the court if you need more information to determine the need for
a representative payee.
Terms for Person Appointed: Limited Guardian, Limited Guardian of the Person, Limited Guardian of the Estate,
Limited Guardian of the Person and Estate, Conservator, Pendente Lite Temporary Guardian,
Special Guardian.
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New Mexico
|
Conditions Under Which Order May
Constitute a Finding of Legal Incompetency: Appointment of a guardian or conservator for an incapacitated person. An incapacitated person means any person who demonstrates partial or complete functional
impairment by reason of mental illness, mental deficiency, physical illness or disability,
chronic use of drugs, chronic intoxication, or other cause, except minority, to the
extent that the person is unable to manage their personal affairs or unable to manage
their estate or financial affairs or both.
The law provides that an incapacitated person for whom a guardian or conservator has
been appointed retains all legal and civil rights except those which have been expressly
limited by court order or have been specifically granted to the guardian or conservator
by the court. The law also provides that a court may find a person totally incapacitated
or incapacitated only in specific areas. Thus, the court order appointing the guardian
or conservator for the incapacitated person must be carefully reviewed to determine
whether it contains a finding of legal incompetency or whether it otherwise indicates
the need for a payee.
Terms for Person Appointed: Guardian, Limited Guardian, Conservator, Limited Conservator
See N.M. Stat. Ann. §§ 45-5-101, 45-5-301.1, 45-5-304, 45-5-311,45-5-312, 45-5-401,45-5-407(2016)
Conditions Under Which Order May
Not Constitute a Finding of Legal Incompetency: Appointment of a conservator where a person has property that may be wasted or dissipated,
funds are needed for their support or that of their dependents, protection is necessary
to obtain or provide funds, AND the person is unable to manage their estate and financial
affairs effectively for reasons such as confinement, detention, by a foreign power,
or disappearance. The court appointing a conservator might not make a finding as to
whether the person is also incapacitated.
Appointment of a limited conservator if it determines that the incapacitated person
is able to manage some but not all aspects of their estate and financial affairs.
The court order appointing a conservator or limited conservator must be carefully
reviewed to determine whether it contains a finding of legal incompetency or whether
it otherwise indicates the need for a payee.
Terms for Person Appointed: Conservator, Temporary Conservator , Limited Conservator,
See N.M. Stat. Ann. §§ 45-5-101, 45-5-401, 45-5-407 (2016)
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New York
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Court order appointing a committee or finding a person to be incompetent. However,
this type of order will be rare.
Terms for Person Appointed: Guardian, Committee
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: The appointment of a guardian (on or after April 1, 1993) or conservator does not
indicate a person is legally incompetent. Review the court order to see whether it
indicates an incapability of managing financial affairs. Contact the court if you
need more information to determine the need for a representative payee.
Terms for Person Appointed: Guardian, Conservator, Guardian ad Litem
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North Carolina
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: A court order appointing a guardian and finding the adult incompetent. An incompetent
adult is an adult or emancipated minor who lacks sufficient capacity to manage their
own affairs or make or communicate important decisions concerning such person, family,
or property, due to mental illness, mental retardation, epilepsy, cerebral palsy,
autism, inebriety, senility, disease, injury, or similar cause or condition.
Terms for Person Appointed: General Guardian, Guardian of the Estate, Public Guardian, Guardian (for veterans),Ancillary
Guardian, Successor Guardian
N.C. Gen. Stat. Ann. §§ 35A-1101, 35A-1112, 35A-1120, 35A-1202, 35A-1280, 35A-1293;
cf. N.C. Gen. Stat. Ann. §§ 34-2, 34-5 (related to the Veterans’ Guardianship Act).
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetence: A court order where there are express terms of limitation on the guardian’s powers
or duties. An appointment for a temporary period prior to adjudication of incompetence.
Term for Person Appointed: Guardian, Guardian of the Person, Guardian of the Estate, Interim Guardian, Limited
Guardian, Standby Guardian, Alternate Standby Guardian, Guardian ad litem
N.C. Gen. Stat. Ann. §§ 35A-1101, 35A-1114, 35A-1202, 35A-1212(a), 35A-1241, 35A-1370,
35A-1372-1374.
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North Dakota
|
Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a guardian for an incapacitated person.
Terms for Person Appointed: Full Guardian
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a conservator or a limited guardian.
Appointment of a limited guardian requires a case-by-case analysis to determine if
the beneficiary is unable to handle benefit payments.
Terms for Person Appointed: Conservator, Limited Guardian
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Ohio
|
Conditions Under Which Order
Constitutes a Finding of Legal Incompetency: A court order appointing a guardian constitutes an adjudication of incompetency. A
“guardian” is any person, association, or corporation appointed by a probate court
to have the care and management of the person or estate or both of an incompetent.
A guardian includes a limited guardian, an interim guardian, a standby guardian, and
an emergency guardian. As such, any guardianship under Ohio law constitutes a finding
of incompetency. If the powers of the person appointed as guardian are not limited
by the order of appointment, the person is guardian of both the person and the estate.
An “incompetent” is a person who, because of mental or physical illness or disability,
intellectual disability, or chronic substance abuse, is so mentally impaired that
they are incapable of taking proper care of themselves or property, or fails to provide
for their family or others for whom they are charged by law to provide.
Terms for Person Appointed: Guardian, Limited Guardian, Interim Guardian, Standby Guardian, Emergency Guardian
Ohio Rev. Code Ann. §§ 2111.01, 2111.02, 2111.06, 2111.13, 2111.14, 2111.15
Conditions Under Which Order May
Not Constitute a Finding of Legal Incompetency: An appointment of a conservator does not constitute a finding of incompetency. A competent
adult who is physically infirm may petition the probate court to place their person
and any or all of their real and/or personal property under a conservatorship for
a definite or indefinite period of time.
Terms for Person Appointed: Conservator
Ohio Rev. Code Ann. § 2111.021
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Oklahoma
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Appointment of a guardian for an incapacitated person. An incapacitated person is
18 or older and is impaired due to mental illness, mental retardation or developmental
disability, physical illness or disability, drug or alcohol dependency, or a similar
cause AND the individual lacks capacity to meet essential requirements for health
and safety, or is unable to manage finances. The law states that the term “incapacitated
person” is the same as “incompetent person” (but does not include a “partially incapacitated
person”).
Term for Person Appointed: Guardian, General Guardian, Special Guardian
See Okla. Stat. Ann. tit. 30, §§ 1-108,1-109,1-110, 1-111, 1-119, 3-111, 3-112, 3-115
(2016)
Conditions Under Which Order May
Not Constitute a Finding of Legal Incompetency: Appointment of a guardian for a partially incapacitated person. A partially incapacitated
person means an incapacitated person who is impaired only to extent that without the
assistance of a limited guardian the person is unable to meet essential requirements
for physical health or safety, or to manage finances or to engage in all of the activities
necessary for the effective management of their financial resources. The law states
that “[a] finding than an individual is a partially incapacitated person shall not
constitute a finding of legal incompetence” and that the person shall retain all legal
rights and abilities other than those expressly limited in the court’s order.
Appointment of a conservator due to a person’s physical disability alone.
The court order appointing a guardian for a partially incapacitated person or appointing
a conservator due to a person’s physical disability must be carefully reviewed to
determine whether it contains a finding of legal incompetency or whether it otherwise
indicates the need for a payee.
Terms for Person Appointed: Conservator, Guardian, General Guardian, Limited Guardian, Special Guardian
See Okla. Stat. Ann. tit. 30, §§ 1-108,1-109,1-110,1-111,1-119, 1-120, 3-111, 3-112,
3-113, 3-114, 3-115, 3-211, 3-212, 3-215 (2016)
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Oregon
|
Conditions Under Which Order May Constitute a Finding of Legal Incompetency: Appointment of a Guardian for an incapacitated person does not necessarily constitute
a finding of legal incompetence. Incapacity is a condition in which a person’s ability
to receive and evaluate information effectively or to communicate decisions is impaired
to such an extent that the person presently lacks the capacity to meet the essential
requirements for the person’s physical health or safety. Letters of Guardianship must
be individually analyzed to determine legal competency.
Oregon’s Letters of Conservatorship are legal evidence of incapability for the purpose
of determining the need for a representative payee, even if the letters do not specify
that the beneficiary is financially incapable or legally incompetent.
Terms for Appointed: Conservator, Guardian
See Oreg. Rev. Stat. §§ 125.005, 125.300, 125.400
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Pennsylvania
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: A court order finding a person totally incapacitated. An incapacitated person is an
adult whose ability to receive and evaluate information effectively and communicate
decisions in any way is impaired to such a significant extent that they are partially
or totally unable to manage their financial resources or to meet essential requirements
for their physical health and safety.
Terms for Person Appointed: Plenary Guardian of the Person
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order finds the person "partially incapacitated" and appoints a limited guardian
of person or estate. Except in areas designated by court order as areas over which
the legal guardian has power, a partially incapacitated person retains all legal rights.
Terms for Person Appointed: Limited Guardian of the Person, Limited Guardian of the Estate
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Puerto Rico
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finds the person to be an unemancipated minor, an insane or demented
person, a deaf person who cannot understand or communicate effectively by any means,
a prodigal or habitual drunkard, or an individual who has been declared a drug addict
by final judgment.
Terms for Person Appointed: Tutor, Guardian, Testamentary Tutor, Testamentary Tutor over the Person, Testamentary
Tutor over the Property, Testamentary Tutor over the Person and the Property
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Rhode Island
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order appointing a guardian is also a finding that the person is totally,
legally incapacitated.
Terms for Persons Appointed: Guardian
See 33 R.I. Gen. Laws Ann. § 33-15-4 (2007)
Conditions Under Which Order May
Not Constitute a Finding of Legal Incompetency: A court order appointing a more limited guardianship based on a finding that the person
is less than totally incapacitated. In such cases, review the findings in the court
order to determine the nature of the person’s limitations. An order appointing a conservator
means that the court found the person incapable of properly caring for their property.
Terms for Persons Appointed: Limited Guardian, Temporary Guardian, Guardian ad Litem, Conservator, Good Samaritan
Guardian
See 33 R.I. Gen. Laws Ann. §§ 33-15-4, 33-15-4.1, 33-15-7, 33-15-8.1, 33-15-44
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South Carolina
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: A court order finding the person to be incapacitated by reason of mental illness,
mental deficiency, physical illness or disability, advanced age, chronic use of drugs,
chronic intoxication, or other cause (except minority) to the extent that they lack
sufficient understanding or capacity to make or communicate responsible decisions
concerning their person or property. Review the court order for a finding regarding
incapacity. Contact the court if you need more information to determine the need for
a representative payee.
Terms for Person Appointed: Guardian, Conservator
S.C. Code Ann. §§ 62-1-201, 62-5-101, 62-5-303-304, 62-5-401, 62-5-407, 62-5-426;
cf. 62-5-700-62-5-716 (related to interstate guardianship under the South Carolina Adult
Guardianship and Protective Proceedings Jurisdiction Act).
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court ordering the appointment of a limited guardian explaining the specific legal
disabilities to which a partially disabled ward is subject. A court ordering the appointment
of a temporary guardian. Analyze each case individually and contact the court if you
need more information to determine the need for a representative payee.
Terms for Person Appointed: Limited Guardian, Temporary Guardian
S.C. Code Ann. §§ 62-5-304(C), 62-5-310.
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South Dakota
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: Only if the court order specifically includes a finding of legal incompetence.
The appointment of a guardian or conservator does not constitute a general finding
of legal competence unless the court so orders. Therefore, it is always necessary
to examine the order of appointment to determine if the court has made a specific
finding regarding incompetency (and if not, whether the beneficiary is unable to handle
benefit payments).
Terms for Person Appointed: Guardian, Conservator, Limited Guardian, Limited Conservator
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Tennessee
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order finding a person with a disability, meaning any person eighteen (18)
years of age or older determined by the court to be in need of partial or full supervision,
protection and assistance by reason of mental illness, physical illness or injury,
developmental disability, or other mental or physical incapacity.
Terms for Person Appointed: Conservator, , Guardian (for minors), District Public Guardian, District Public Conservator,
Fiduciary (for a person with a disability), Standby Fiduciary (for a person with a
disability)
Tenn. Code Ann. §§ 34-1-101, 34-1-119, 34-1-126, 34-3-107, 34-7-104; cf. 34-8-101-34-8-503 (related to interstate guardianship under the Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act).
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Court orders or appointments that find a disabled person in need of partial supervision,
protection and assistance by reason of mental illness, physical illness or injury,
developmental disability or other physical or mental incapacity. Review the court
order for a finding regarding partial disability. Contact the court if you need more
information to determine the need for a representative payee.
Terms for Person Appointed: Conservator, , Guardian (for minors), District Public Guardian, District Public Conservator,
Fiduciary (for a person with a disability), Standby Fiduciary (for a person with a
disability), Emergency Guardian, Emergency Conservator
Tenn. Code Ann. §§ 34-1-101, 34-1-119, 34-1-126, 34-1-132, 34-7-104.
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Texas
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency:
Appointment of a guardian with full authority over an incapacitated person. The law
provides in general that all of the following mean an incapacitated person: a person
who is mentally, physically, or legally incompetent; a person who is judicially declared
incompetent; an incompetent or an incompetent person; a person of unsound mind; or
a habitual drunkard. Under guardianship law specifically, an incapacitated person
is a minor or an adult person who, because of physical or mental condition, is substantially
unable to: provide their food, clothing, or shelter; care for their physical health;
or manage their financial affairs; OR a person who must have a guardian to receive
funds from a governmental source.
Term for Person Appointed: Guardian
See Tex. Estates Code Ann. §§ 1001.003, 1002.012, 1002.017, 1101.151 (2016)
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointment of a temporary guardian over a person. The law provides that a person
for whom a temporary guardian is appointed may not be presumed to be incapacitated.
Appointment of a guardian with limited authority over an incapacitated person. If
the court finds that the individual lacks capacity to do some, but not all, of the
tasks necessary to care for themselves or manage their property, the court may appoint
a guardian with limited powers as specified in the court order.
The court order appointing a temporary guardian over a person or appointing a guardian
with limited authority must be reviewed carefully to determine whether it contains
a finding of legal incompetency or whether it otherwise indicates the need for a payee.
Terms for Person Appointed: Guardian, Temporary Guardian
See Tex. Estates Code Ann. §§ 1002.012, 1101.152, 1251.001, 1251.002, 1251.010 (2016).
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U.S. Virgin Islands
|
Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order or appointment finding the person to be an insane person, an idiot,
a lunatic, a person incapable of conducting their own affairs, or a spendthrift.
Terms for Person Appointed: Guardian, Testamentary Guardian
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: The court order appoints a “guardian ad litem.”
|
Utah
|
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order finding the person incapacitated. A guardian of an incapacitated person
has only those powers, rights, and duties respecting the incapacitated person or ward
that are specified in the order of appointment. If the order of appointment does not
contain a specific limitation on the guardian’s power, the guardian has the same powers,
rights, and duties that a parent has with regard to a minor child.
Examine the order of appointment to determine whether there is a limitation on the
guardian’s power and for additional evidence regarding the degree of incapacitation.
Terms for Person Appointed: Guardian, Temporary Guardian, Emergency Guardian
|
Vermont
|
Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: A court order appointing a guardian is also a finding that the individual is unable
to manage any or all aspects of their personal care and financial affairs.
Terms for Persons Appointed: Guardian
See Vt. Stat. Ann. tit. 14, § 3069 (2011)
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order appointing a limited guardian. In such cases, review the findings in
the court order to determine the nature of the person’s limitations.
Terms for Persons Appointed: Limited Guardian, Temporary Guardian, Public Guardian, , Guardian Ad Litem, Guardian
of the Property (for non-residents)
See Vt. Stat. Ann. tit. 14, §§ 3066, 3069, 3081, 3092
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Virginia
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Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: A court order that finds that a person is incapacitated. An incapacitated person is
an adult who has been found by a court to be incapable of receiving and evaluating
information effectively or responding to people, events, or environments to such an
extent that the individual lacks the capacity to (i) meet the essential requirements
for their health, care, safety, or therapeutic needs without the assistance or protection
of a guardian or (ii) manage property or financial affairs or provide for their support
or for the support of their legal dependents without the assistance or protection
of a conservator.
Terms for Person Appointed: Conservator, Guardian
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: Appointments of “limited” and “temporary” guardians and conservators should be reviewed
for findings of incapacity. A finding that the individual displays poor judgment,
alone, shall not be considered sufficient evidence that the individual is an incapacitated
person.
Terms for Person Appointed: Limited Guardian, Temporary Guardian, Limited Conservator, Temporary Conservator
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Washington
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Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: Appointment of a guardian for an incapacitated person. A person is incapacitated and,
therefore, incompetent if, (by reason of minority or mental illness, developmental
disability, senility, habitual drunkenness, excessive use of drugs, or other mental
incapacity), the person has demonstrated inability to adequately manage their property
or financial affairs, care for themselves, or both.
Terms for Person Appointed: Guardian, See Wash. Rev. Stat. § 11.88.010
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency:
Appointment of a Limited Guardian who has fewer than all of the legal duties and powers
of a Guardian.
Term for Person Appointed: Limited Guardian
See Wash. Rev. Stat. § 11.88.010(2)
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West Virginia
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Conditions Under Which Order Constitutes a Finding of Legal
Incompetency: A court order specifies that the appointment is because the “protected person” is
mentally incompetent. A protected person is an adult individual, eighteen years of
age or older, who has been found by a court, because of mental impairment, to be unable
to receive and evaluate information effectively or to respond to people, events, and
environments to such an extent that the individual lacks the capacity: (A) To meet
the essential requirements for their health, care, safety, habilitation, or therapeutic
needs without the assistance or protection of a guardian; or (B) to manage property
or financial affairs or to provide for their support or for the support of legal dependents
without the assistance or protection of a conservator.
Terms for Person Appointed: Guardian, Conservator
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order appointing a guardian that specifies that the appointment is because
the “protected person” is mentally handicapped or mentally retarded, the appointment
of a guardian would not constitute a finding of legal incompetence. Court should appoint
least restrictive guardianship or conservatorship possible.
Terms for Person Appointed: Limited Guardian, Limited Conservator, Temporary Guardian, Temporary Conservator
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Wisconsin
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Conditions Under Which Order Constitutes a Finding of
Legal Incompetency: (1) A court order may appoint a guardian of the estate for an individual if it finds
by clear and convincing evidence that the individual is a spendthrift. A “spendthrift”
is a person who, because of the use of alcohol or other drugs, gambling, or other
wasteful conduct, is unable to manage effectively their financial affairs or is likely
to affect the health, life, or property of themselves or others so as to endanger
their support and the support of any dependents, or expose the public to responsibility
for such support.
(2) A court may appoint a guardian of the person or estate or both for an individual
if it finds by clear and convincing evidence that the individual is incompetent. An
“incompetent” individual is one who, because of an impairment, is unable effectively
to receive and evaluate information or to make or communicate decisions to meet the
essential requirements for their physical health and safety and/or to manage their
property or financial affairs.
(3) A court may appoint coguardians of the person or estate, subject to any conditions
that the court imposes.
(4) A court may designate a standby guardian whose appointment will become effective
upon the death, unwillingness, inability to act, resignation, or removal of the initial
guardian or during a period when the initial guardian is temporarily unable to fulfill
their duties.
(5) A court may appoint a successor guardian if a guardian dies, is removed by the
court, or resigns.
Terms for Person Appointed: Guardian, Guardian of the Estate, Guardian of the Person or Estate or Both, Coguardians,
Standby Guardian, Successor Guardian
Wis. Stat. Ann. §§ 54.01, 54.10, 54.52, 54.54
Conditions Under Which Order May
Not Constitute a Finding of Legal Incompetency:
(1) A court may appoint a temporary guardian of the person or estate if it finds that
the individual’s situation requires the immediate appointment of a temporary guardian.
An appointment of a temporary guardian does not constitute a finding of incompetence,
as it only requires a showing of a reasonable likelihood of incompetence.
(2) An appointment of a conservator does not constitute evidence of incompetency.
Any adult resident who is unwilling or believes that they are unable properly to manage
their assets or income may voluntarily apply to the court for appointment of a conservator
of the estate. A court may also appoint a standby conservator or successor conservator.
Notably, a court must deny an application to terminate a conservatorship if it finds
that the individual is incompetent/incapable of handling their income and assets.
Review any court order following a termination application to determine if the court
made any finding regarding the individual’s competence to manage their income and
assets.
Terms for Person Appointed: Temporary Guardian,
Temporary Guardian of the Person or Estate, Conservator, Conservator of the Estate,
Standby Conservator, Successor Conservator
Wis. Stat. Ann. §§ 54.01, 54.50, 54.76
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Wyoming
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Conditions Under Which Order Constitutes a Finding of Legal Incompetency: A court order specifically finds the person to be incompetent.
Terms Related to Person Responsible for Guardianship: Guardian, Conservator, Guardian of the Estate, Guardian of the Property, Temporary
Guardian.
Conditions Under Which Order May Not Constitute a Finding of Legal Incompetency: A court order may appoint a guardian or conservator on voluntary petition even if
the petitioner is not a mentally incompetent person.
The court order should be examined in order to determine if the court made a finding
of incompetency.
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