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What should you do if a loved one is mentally incapacitated?

On Behalf of | Nov 5, 2019 | Estate Planning |

As loved ones age, families can run into many tough decisions about how to care for them. These decisions become even harder if loved ones start losing mental capacity.

So, what can families do if they believe their loved one is mentally incapacitated?

First, how can you tell a loved one is incapacitated?

It is common for even the closest family members of a loved one to overlook the signs of incapacity or be in denial about them. This is often because it is emotionally painful to face this reality. Sometimes, the mental decline is so gradual that it is not markedly noticeable, or they might not be aware of the signs of mental incapacity.

The California Probate Code offers a legal definition that explains common characteristics and factors that could indicate mental incapacity. These factors include, but are not limited to:

  • Inability to process information;
  • Loss of memory;
  • Struggles to recognize familiar places and people;
  • Difficulty reasoning and communicating; and
  • Experiencing hallucinations, in extreme cases.

These are the common signs that an individual lacks mental capacity. If individuals notice these signs in their loved one, family should first ascertain whether the loved one did advance planning for their incapacity. If they do not have a comprehensive estate plan that includes such planning, it might be beneficial to consider a conservatorship.

What should you do if your loved one has a lack of mental capacity?

Families might be hesitant to establish a conservatorship if they do not think their loved one is incapacitated. Thankfully, there is not often a reason to worry. It is difficult to establish an unwarranted conservatorship. California Courts have an extensive process they complete to prove someone is incapacitated and that conservatorship is the least restrictive available option for the loved one.

It is possible to begin this process by:

  1. Petitioning for a conservatorship: Most family members have the right to propose a conservatorship for their loved ones. The petition requires family members to complete a considerable amount of paperwork to provide information. It is beneficial for families to consult an experienced attorney to ensure this paperwork is properly completed.
  2. Requesting an official evaluation of the loved one: This is a key part of the court process. The law clearly states that the diagnosis of mental incapacity is not enough to warrant a conservatorship. So, it is necessary to request a medical evaluation of the loved one’s mind and body.
  3. Supporting their loved one: This can be a scary and confusing time for both the family and their incapacitated loved one. Individuals should provide their loved one with love and support during this stressful time.

A conservatorship might not work for everyone. If the loved one did estate planning, conservatorship may not be necessary. Regardless, it is important for families to take action to protect their loved ones rights and best interests if they become incapacitated.