The term “diminished capacity” means slightly different things, depending on the legal issue at hand. For instance, the definition varies whether you are talking about testamentary capacity, donative capacity or contractual capacity. These are only three examples of how the definition can vary, depending on the legal matter.
When it comes to guardianships and conservatorships, the definition gets a bit more complex. When a court considers whether to appoint a guardian or conservator, it needs to be sure that an appointment is necessary, since the person needing the assistance loses the right and ability to act for him or herself.
Definition of incapacitated person
In order for the court to determine that an individual is in need of a guardian or conservator, the court will more than likely consider the following things:
- Does the potential ward, the allegedly incapacitated person, have a disabling condition.
- Does that condition prevent the ward from adequately managing his or her financial or personal affairs?
- Does the ward lack the ability to adequately receive or evaluate information?
- Does the ward lack the ability to communicate or make decisions?
- Does the ward lack the ability to adequately meet physical, self-care or safety even with assistance?
The court needs to be sure the appointment is a necessity in order to ensure the ward receives the appropriate care. If it turns out that the ward does need some type of assistance and care, the court will then determine whether this avenue doesn’t put unnecessary restrictions on him or her.
Determination of incapacitation
Even if the court rules that some form of incapacitation exists, it will attempt to limit the restrictions placed on the ward’s independence and freedom. A person does not have to either have capacity or not; there are several shades of grey within those two extremes. The court would rather keep the control over the ward as limited as possible since the potential ward should retain as much independence as possible.
If you have a loved one you believe needs a guardian or conservator, you may want to know ahead of time whether that person fits into the legal definition of diminished capacity. If so, then you need to know what evidence will present your position best. You may also want to understand the rights of the individual involved and how those rights will impact your petition to the court. The legal resources available here in Costa Mesa may prove invaluable.