Competency and Guardianship

The question of competency may arise in the case of a person who, because of physical or mental infirmity, has problems in taking care of his or her property and other affairs. If the person is found legally incompetent, the court will appoint a guardian to manage his or her property and situation. This process, referred to as guardianship or conservatorship, results in the person forfeiting his or her legal and personal autonomy. The guardian or conservator makes decisions concerning all aspects of the person's life— living arrangements, medical treatment, financial expenditures, and management of assets (Wilbur, 1991). A competency hearing should not be entered into lightly by a relative of the person at issue. Forcing an elderly person to become totally dependent on someone else can be personally debilitating and even expose him or her to exploitation and victimization.

The concept of testamentary capacity is a specific kind of competency— the competency to make a will. Establishing the testamentary capacity of a person requires a separate hearing to determine if the person knows (1) the nature of his or her property (bounty), (2) that he or she is making a will, and (3) who his or her natural beneficiaries are. Not only are the determination of competency and testamentary capacity separate legal matters, but they are also separate from the legal determination of insanity.

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