Tuesday, November 10, 2009

Competency and the law

MANY WRITERS SEEM to have problems distinguishing between the different forms of mental competency in their stories. Here is a short list of mental competency items writers might find helpful:

Mental health commitments: People are ordered into mental health treatment after a hearing before a judge where it can be shown that the individual poses a risk of harm to himself or others. Substance abuse matters are handled in a similar fashion.

Usually the procedure is started by a relative or physician who makes an application to a court outlining their concerns that the individual is at risk of harm due to his mental condition, or that someone else may be at risk. The application is usually by affidavit and the judge will then decide if the individual will need to be taken into custody (usually to a hospital mental ward) until a hearing can be held. At that time the judge will also appoint an attorney for the individual. A full hearing is also scheduled, usually within a week or ten days from the date the application is filed.

Guardianships and conservatorships: Individuals who cannot care for themselves are often assigned a guardian and/or conservator by the court. The difference is easy to know: a guardian assists the individual (called the ward) with physical needs while the conservator assists with financial and business matters. The guardian and conservator can be separate persons or a single individual.

Guardianship and conservatorships can be established by petition to the court in an involuntary procedure or can be done by petition of the proposed ward himself as a voluntary petition. In an involuntary case, the petitioner is often a department of human services or a family matter. Usually the court will also appoint an attorney for the proposed ward at the time the petition is filed with the court and an initial hearing date is set. In an emergency situation the court can also order the proposed ward taken to a hospital or nursing home pending a full hearing.

Powers of attorney: POAs are voluntary documents signed by an individual giving another authority to handle his financial affairs. These can be done in anticipation of some legal incapacity or for the convenience of the individual. For example, it is not unusual for a soldier being shipped overseas to execute a POA in favor of his parents so they can handle his affairs while away. A medical power of attorney can be used to give another person authority to make medical decisions when the individual is no longer able to make those decisions himself.

Estate planning: The establishment of any of the above will not necessarily impair the legal ability of a person to write a will. The requirement for a testator is that they will know and appreciate those who might be the natural objects of their estate. So if a person has a clear idea how he would like to have is property distributed after his death, he still may be legally capable of writing a will.

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