TN 30 (03-04)

GN 00502.300 Digest of State Guardianship Laws

A. BACKGROUND

Based on regional chief counsel opinions, we have compiled a digest (see GN 00502.300 C.) of State guardianship laws that provide summary information on the State laws concerning the appointment of guardians and other persons who are placed in charge of the affairs of an adult who is incapable of managing his/her affairs. Rather than finding legal incompetence, many States now strive for limited guardianships when the individual retains some ability to manage his/her affairs. Each State synopsis provides the conditions under which the ruling/appointment constitutes a finding of legal incompetency. Where applicable, each synopsis also provides the conditions under which the ruling/appointment may NOT constitute a finding of legal incompetency or under which the ruling/appointment might indicate the need for a representative payee. Cautions have been footnoted.

B. PROCEDURE

Use the digest to determine if the court order of the appointment of a guardian means the beneficiary is legally incompetent. If, based on the State digest, the court order finds the beneficiary to be legally incompetent, develop and appoint a representative payee for the beneficiary.

If the court does NOT find the beneficiary legally incompetent in its order, use the digest to determine if the court order otherwise indicates the need for a representative payee. Also consider other evidence of capability (see GN 00502.020 - GN 00502.070).

C. EXHIBIT –DIGEST OF STATE GUARDIANSHIP LAWS

State

State Rulings on Incompetency and Person Appointed

Alabama

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of a guardian for incapacitated persons (lacking the capacity to make responsible decisions) or conservator for persons unable to manage property and business affairs effectively.

Terms for Person Appointed: Guardian, Conservator

Conditions Under Which Ruling/Appointment Might 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 incapacity or inability directly renders the claimant unable to handle benefit payments.

Terms for Person Appointed: Limited Guardian, Limited Conservator

Alaska

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of guardian for an incapacitated person. (An incapacitated person lacks the ability to provide the essential requirements for the person’s health or safety). Appointment of a conservator to manage the estate and/or affairs of a protected person.

Term for Person Appointed: Guardian, Full Guardian, Conservator

Conditions Under Which Ruling/Appointment Might 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. The court order must be reviewed carefully to determine whether it establishes legal incompetency or whether it otherwise indicates the need for a payee.

Term for Person Appointed: Partial Guardian

American Samoa

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of guardian for a person mentally or physically incompetent to manage his own property.

Term for Person Appointed: Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: Appointment of guardian not made under American Samoa Code Annotated §§ 40.0401 - 40.0410.

Arizona

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of 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 he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.

Term for Person Appointed: Guardian

Arkansas

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of guardian due to incapacitation 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 his health or safety or to manage his estate.

Terms for Person Appointed: Guardian, Temporary Guardian (90 days).

Conditions Under Which Ruling/Appointment Might Not Constitutes a Finding of Legal Incompetency: Appointment of guardian or conservator due to advanced age or physical disability. The court order 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, Conservator

California

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of 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 his or her personal needs, and the appointment of a conservator of the estate is for the person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence.

Terms for Person Appointed: Conserver of the Person, Conservator of the Estate, Conservator of the Person & Estate.

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: Appointment of a limited conservator for a developmentally disabled adult. The appointment does not preclude the limited conservatee from entering into transactions or types of transactions, except as provided by the court order appointing the limited conservator.

Terms for Person Appointed: Limited Conservator

Colorado

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of a guardian. Guardians are appropriate only for incapacitated persons.

Terms for Person Appointed: Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: Appointment of a conservator or the entry of another protective order is not a determination of legal incompetence. However, the appointment of a conservator may be evidence of a beneficiary’s inability to manage or direct the management of financial affairs or benefits. Further development regarding the need for a representative payee is required.

Term for Person Appointed: Conservator, Limited Conservator

Connecticut

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds the person is incapable of caring for himself or herself or incapable of managing or directing the management of his/her financial affairs or benefits.

Terms for Person Appointed: Conservator of the Person, Conservator of the Estate, Plenary Guardian, Limited Guardian

Delaware

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of a guardian does not necessarily constitute a finding of legal incompetence. Guardianship appointments must be individually analyzed and court contact will be required to determine if legal incompetency was found.

Term for Person Appointed: Guardian, Guardian of the Person

Conditions Under Which Ruling/Appointment Might 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: Guardian of the Property

District of Columbia

Conditions Under Which Ruling/Appointment Constitutes 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 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. The court order should be analyzed and/or court contact made to determine competency.

Term for Person Appointed: Guardian, Limited Guardian, Conservator, Limited Conservator

Florida

Conditions Under Which Ruling/Appointment 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). Order appointing limited guardian of incapacitated person (when the lack of capacity affects the ability to manage benefits).

Term for Person Appointed: Guardian, Plenary Guardian, Limited Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute Legal Incompetency: Order appointing a limited guardian over an incapacitated person for whom the court order does not specifically delegate rights affecting the ward’s ability to manage finances and property.

Term for Person Appointed: Limited Guardian, Conservator, Guardian of the Property

Georgia

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of a guardian for an adult incapacitated by reason of mental illness, mental retardation, mental disability, physical illness or physical disability, chronic use of drugs or alcohol, or other cause. Such adult lacks sufficient understanding or capacity to make significant responsible decisions concerning his or her person or is incapable of communicating them. Appointment of a guardian for an adult incapable of managing his or her estate.

Terms for Person Appointed: Guardian over the Person and/or Guardian over the Property.

Conditions Under Which Ruling/Appointment Might Not Constitute Legal Incompetency: Appointment of a guardian over the property based upon detention by a foreign power or disappearance.

Terms for Person Appointed: Guardian over the Property

Guam

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of a guardian for an insane or incompetent individual. An incompetent person is any person who by reason of old age, disease, weakness of mind or other cause, is unable, unassisted, to properly manage and take care of himself or his property.

Term for Person Appointed: Guardian, General Guardian, Special Guardian

Hawaii

Conditions Under Which Ruling/Appointment 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, physical illness or disability, advanced age, 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 one’s person.

Term for Person Appointed: Guardian of the Person

Conditions Under Which Ruling/Appointment Might 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 himself or herself.

Idaho

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of a guardian for an incapacitated person. Incapacitated person is one who is impaired, except by minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person. The term shall not refer to a developmentally disabled person. Appointment of a conservator for a protected person who is unable to manage his or he property and affairs effectively.

Term for Person Appointed: Guardian, Conservator

Illinois

Conditions Under Which Ruling/Appointment Might Indicate a Need for a Payee: Appointment of a plenary guardian for a disabled person. All other guardianship appointments are ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations, and must be analyzed on a case-by-case basis.

Terms for Person Appointed: Plenary Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute Legal Incompetency: Appointment of a limited or temporary guardian. The limited guardianship removes from the disabled person only that authority which the court specifically gives to the limited guardian through a written order. Court contact may be necessary to determine if legal incompetency has been found.

Terms for Person Appointed: Limited Guardian, Temporary Guardian

Indiana

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Court ruling or appointment finding the person legally incapacitated. An incapacitated person is an individual who (1) cannot be located upon reasonable inquiry; (2) has a developmental disability; or (3) because an incapacity (such as insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others) is unable to provide self-care and/or manage his/her property, in whole or in part.

Terms for Person Appointed: Guardian, Limited Guardian, Temporary Guardian, Successor Guardian, Conservator

Iowa

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment of a guardian includes a finding that the individual is incompetent or is of unsound mind. A court appointment is made for a person whose decision-making capacity is so impaired he is unable to provide for personal safety or necessities or is unable to make, communicate or carry out important decisions concerning his personal affairs.

Term for Person Appointed: Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: An appointment of a guardian or conservator that does not include a finding of incompetency must be individually analyzed and court contact will be required to determine if legal incompetency was found.

Term for Person Appointed: Limited Guardian, Temporary Guardian, Standby Guardian, Conservator, Limited Conservator, Temporary Conservator, Standby Conservator

Kansas

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Court ruling or appointment finds the person to be incompetent or an adult with impairment in need of a guardian or a conservator. An adult with such an impairment is one whose 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.

Terms Related to Person Responsible for Guardianship: Guardian, Conservator

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: Court appoints a temporary guardian or temporary conservator. Analyze each case individually and contact the court if you need more information to determine the need for a representative payee.

Terms Related to Person Responsible for Guardianship:

Limited Guardian, Limited Conservator, Temporary Guardian, Temporary Conservator, Standby Guardian, Ancillary Conservator, Standby Conservator

Kentucky

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Court ruling or appointment finds the individual totally disabled to manage financial affairs and/or totally disabled to manage personal affairs.

Terms for Person Appointed: Guardian, Conservator, Curator (not Curator of/for convict)

Conditions Under Which Ruling/Appointment Might Not Constitute Incompetency: Court ruling or appointment finds individual partially disabled. A case-by-case analysis and court contact will be required to determine if legal incompetence was found or if the ruling/appointment otherwise indicates the need for a payee.

Terms for Person Appointed: Partial Guardian, Partial Conservator, Limited Guardian, Limited Conservator

Louisiana

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Court ruling or appointment finds, due to an infirmity, a person is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means. Such a person is adjudged a full interdict.

Term for Person Appointed: Curator

Conditions Under Which Ruling/Appointment May Not Constitute a Finding of Legal Incompetency: Court ruling or appointment adjudges the person to be a limited interdict.

Terms for Person Appointed: Curator, Limited Curator

Maine

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Court ruling or appointment finds the person legally incapacitated. An incapacitated person is any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic drug use, chronic intoxication or other cause except minority to the extent he lacks sufficient understanding or capacity to make or communicate responsible decisions regarding his person.

Terms for Persons Appointed: Guardian, Fiduciary

Conditions Under Which Ruling/Appointment May Not Constitute a Finding of Legal Incompetency: A protective order may or may not indicate that the protected person lacks the ability to effectively manage or apply his estate to necessary ends. Legal competency must be determined on a case-by-case basis.

Terms for Persons Appointed: Conservator

Maryland

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Appointment of a guardian of the person. Such an appointment is based on a finding that a person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his 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.

Terms for Person Appointed: Guardian of the person

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court appointment of a guardian of an individual's property has no bearing the issue of capacity of the alleged disabled person to care for his own person.

Terms for Person Appointed: Guardian of the property

Massachusetts

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds the person legally incompetent and appoints a guardian. An incompetent person is defined as a mentally ill person; mentally retarded person; a person unable to make or communicate informed decisions due to physical incapacity or illness; a person who by reason of mental weakness, mental retardation or physical incapacity is unable to properly care for their property.

Terms for Persons Appointed: Guardian, Conservator

Michigan

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court appointment of a plenary guardian for a developmentally disabled individual, a full guardian for a legally incapacitated individual, or a conservator for a protected individual.

Terms for Person Appointed: Plenary Guardian, Full Guardian, Temporary Guardian of an Incapacitated Person, Conservator for a Protected Person.

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court appointment of a partial guardian for a developmentally disabled individual, a limited guardian for an individual who lacks some capacity, a conservator for an individual who has requested one because of age or physical infirmity, or a limited conservator with limited responsibilities. An order of commitment or a judicial order or other determination that a person requires treatment or hospitalization does not constitute a finding of incompetency.

Terms for Person Appointed: Limited Guardian, Partial Guardian, Limited Conservator, Temporary Guardian, Testamentary Guardian, Conservator

Minnesota

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court appointment of a guardian for a person ruled to be incapacitated. An incapacitated person is a person who, for reasons other than being a minor, (1) lacks sufficient understanding or capacity to make or communicate responsible personal decisions; and (2) has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety.

Terms for Person Appointed: Guardian, Temporary Substitute Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court appointment of a conservator for a protected person. Unlike the court appointment of a guardian, the appointment of a conservator does not require a judicial finding that the person is incapacitated.

The appointment of a guardian by a parent’s or spouse’s will is not a determination of incapacity; however, the guardian must go to the court to confirm the appointment.

Terms for Person Appointed: Guardian, Limited Guardian, Conservator, Limited Conservator, Emergency Guardian

Mississippi

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment of a guardian or conservator over the person.

Terms for Person Appointed: Guardian, Guardian of the Person, Conservator of the Person

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court appointment of a conservator for reasons of advanced age, physical incapacity or mental weakness.

Terms for Person Appointed: Conservator

Missouri

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds the person is legally incapacitated and appoints a guardian or conservator.

Terms for Person Appointed: Guardian conservator

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: The court finds a person partially incapacitated, disabled, or partially disabled, or the court appoints a limited guardian, or limited conservator. Analyze each case individually and contact the court if you need more information to determine legal competency.

Terms for Person Appointed: Limited Guardian, Limited Conservator.

Montana

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: None.

An incapacitated person for whom a guardian has been appointment is not presumed to be incompetent. Please contact the court for additional information in determining in capability.

Terms for Person Appointed: Full Guardian, Limited Guardian

Nebraska

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment appoints or qualifies a person as guardian of an incapacitated person. An incapacitated person is 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 himself or herself.

Terms for Person Appointed: Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court order appoints a limited guardian or limited conservator, whose duties shall be specified in the letters of appointment of the Guardian or Conservator or appoints a guardian or conservator for specified areas.

Analyze each case individually and contact the court if you need more information to determine legal competency.

Terms for Person Appointed: Limited Guardian, Conservator, Limited Conservator, Temporary Conservator

Nevada

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment 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, properly to manage and take care of himself or his 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 Ruling/Appointment Might 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 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

New Hampshire

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment that finds the person legally incapacitated and appoints a guardian.

Terms for Persons Appointed: Guardian of the Person, Guardian of the Person and Estate.

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: An appointment of a conservator.

Terms for Persons Appointed: Conservator

New Jersey

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds the person incapacitated and appoints a guardian. An incapacitated person is a person who is impaired by reason of mental illness or mental deficiency to the extent that he or she lacks sufficient capacity to govern himself or herself and manage his or her affairs.

Terms for Person Appointed: Guardian, Testamentary Guardian, Guardian for Person, Guardian for Estate, Guardian for Person and Estate.

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: The appointment of a guardian ad litem is not any indication of incompetence or incapacity.

New Mexico

New Mexico recognizes limited conservatorship for specified purposes, tailored to the individual case when the incapacitated person can manage some but not all aspects of their financial affairs.

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment of a guardian based on a finding that the person has 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 his or her personal affairs or unable to manage his or her estate or financial affairs or both.

Terms for Person Appointed: Guardian, Limited Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court appointment of a conservator where a person has property that may be wasted or dissipated, funds are needed for his support or that of his dependents, AND for reasons such as confinement, detention by a foreign power, or disappearance, he is incapacitated or unable to manage his estate and financial affairs effectively.

Terms for Person Appointed: Conservator, Temporary Conservator

New York

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: Court order appointing a guardian refers to the individual as a “person with incapacities.”

Terms for Person Appointed: Guardian

Conditions Under Which Ruling/Appointment Might 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. Examine the court documents for a determination of legal competency and 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

North Carolina

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment of a guardian finding the adult incompetent. An incompetent adult is an adult or emancipated minor who lacks sufficient capacity to manage his or her own affairs or to 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 Person, Public Guardian, Ancillary Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetence are: A court ruling or appointment 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

North Dakota

Conditions Under Which Ruling/Appointment Might Constitute a Finding of Legal Incompetency: A court ruling or appointment indicates that a person is mentally incompetent.

Terms for Person Appointed: Full Guardian, Limited Guardian.

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: Appointment of a conservator

Terms for Person Appointed: Conservator

Ohio

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment of a guardian constitutes an adjudication of incompetency. An incompetent is a person who, because of mental or physical illness or disability, mental retardation, or chronic substance abuse, is so mentally impaired that he is incapable of taking proper care of self or property or fails to provide for his/her family or others for whom he/she is charged by law to provide.

Terms for Person Appointed: Guardian, Interim Guardian, Emergency Guardian, Guardian of Estate or Person or both, Limited Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: An appointment of a conservator does not constitute a finding of incompetency. A competent adult may petition the court to place his or her person and/or any or all real or personal property under a conservatorship for a definite or indefinite period of time.

Terms for Person Appointed: Conservator

Oklahoma

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds the person is legally incapacitated. An incapacitated individual is 18 or older and is incapacitated 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.

Term for Person Appointed: Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court ruling or appointment finds the person to be partially incapacitated and impaired only to extent that person is unable to meet essential requirements for physical health or safety, or to manage finances or the person is incapacitated due to physical disability.

Terms for Person Appointed: Conservator, Guardian, Limited Guardian, Special Guardian

Oregon

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds the person to be incapacitated. 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 or safety.

Terms for Appointed: Conservator, Guardian

Pennsylvania

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment 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 he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.

Terms for Person Appointed: Plenary Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court ruling or appointment 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 Person, Limited Guardian of Estate

Puerto Rico

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds the person to be an unemancipated minor, an insane or demented person, a deaf and dumb person who cannot understand or communicate effectively by any means, or a prodigal or habitual drunkard.

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

Rhode Island

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds the person to be totally incapacitated.

Terms for Persons Appointed: Guardian, Good Samaritan Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court ruling or appointment finds the person to be less than totally incapacitated.

Terms for Persons Appointed: Limited Guardian, Temporary Guardian, Guardian ad Litem, Conservator, Good Samaritan Guardian

South Carolina

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment 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 he/she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his/her person or property

Terms for Person Appointed: Guardian, Conservator

Conditions Under Which Ruling/Appointment Might 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. 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

South Dakota

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: An appointment of a guardian or conservator of a protected person contains a finding of legal incompetence.

Terms for Person Appointed: Guardian

Tennessee

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finding the person disabled and in need of full supervision, protection and assistance by reason of mental illness, physical illness or injury, developmental disability, or other physical or mental incapacity.

Terms for Person Appointed: Conservator, Guardian ad Litem, Guardian (for veterans), Public Guardian

Conditions Under Which Ruling/Appointment Might 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.

Terms for Person Appointed: Conservator, Guardian ad Litem, Guardian (for veterans), Public Guardian

Texas1,2

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finding the person to be incapacitated. An incapacitated person is an adult person who, because of physical or mental condition, is substantially unable to provide his food, clothing, or shelter, to care for his physical health, or to manage his financial affairs; OR a person who must have a guardian to receive funds from a governmental source.

Term for Person Appointed: Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court finding that the individual lacks capacity to do some, but not all, of the tasks necessary to care for himself or manage his property, and the court appoints a guardian with limited powers as specified in the court order.

Terms for Person Appointed: Guardian, Limited guardian, Temporary guardian

U.S. Virgin Islands

Conditions Under Which Ruling/Appointment 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, a spendthrift, or a mentally incompetent veteran.

Terms for Person Appointed: Guardian, Testamentary Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: The court ruling or appointment appoints a “guardian ad litem.”

Utah

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court ruling or appointment finding the person incapacitated. A guardian of an incapacitated person has only those powers, rights, and duties respecting the incapacitated person or ward in the order of appointment.

Contact the court for additional information when using this evidence to assist in a determination of the degree of incapacitation.

Terms for Person Appointed: Guardian, Temporary Guardian

Vermont

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment of a total guardian for a ward. A ward is a mentally disabled person who is at least 18 years old, is mentally ill or mentally retarded or the person is unable to manage, without supervision of a guardian, some or all aspects of his or her personal care or financial matters.

Terms for Persons Appointed: Total Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court ruling or appointment of a limited guardian or a guardian for a spendthrift.

Terms for Persons Appointed: Limited Guardian, Temporary Guardian, Public Guardian

Virginia

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment 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 his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his or her support or for the support of his legal dependents without the assistance or protection of a conservator.

Terms for Person Appointed: Conservator, Guardian

Conditions Under Which Ruling/Appointment Might 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

Washington

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds that a person is incapacitated (by reason of minority or mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, other mental incapacity), with respect to either managing his or her property or caring for himself or herself, or both.

Terms for Person Appointed: Guardian, Limited Guardian

West Virginia

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment 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 his or her 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 his or her 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 Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court ruling or appointment of 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

Wisconsin

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment finds the person to be incompetent or a spendthrift.

An incompetent person is one whom a court has found substantially incapable self-care or of managing his/her property because of infirmities of aging, developmental disabilities, or other like incapacity. A spendthrift is a person who, because of intoxicants or drugs, gambling, idleness, debauchery, or other wasteful conduct, is unable to attend to business or is likely to affect the health, life, or property of himself/herself or others so as to endanger his/her own support or the support of his/her dependents, or to expose the public to such support.

Terms for Person Appointed: Guardian, Standby Guardian

Conditions Under Which Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court finding of limited incompetency will specify the legal rights the person remains competent to exercise.

Terms for Person Appointed: Temporary Guardian, Limited Guardian of Property, Conservator

Wyoming

Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency: A court ruling or appointment 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 Ruling/Appointment Might Not Constitute a Finding of Legal Incompetency: A court ruling or appointment may appoint a guardian on voluntary petition if the petitioner is not a mentally incompetent person.

Terms Related to Person Responsible for Guardianship: Guardian, Limited Guardian


Footnotes:

[1]

If the court order for guardian, curator or conservator does not state the individual is incapable by reason of unsound mind or one of the terms which indicates unsound mind, the court must be contacted to determine if mental incompetency was addressed. It cannot be assumed that the appointment of a guardian, curator or conservator equates to a finding of legal incompetency.

[2]

The appointment of a conservator constitutes a finding of legal incompetency only if the order specifics that the court determined that the person was unable to manage his/her property or affairs effectively because of conditions which are listed


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0200502300
GN 00502.300 - Digest of State Guardianship Laws - 08/03/2012
Batch run: 08/03/2012
Rev:08/03/2012