How to Legally Declare Someone as Mentally Incompetent?


A person is deemed to be incompetent when they no longer display the ability to make decisions that are in their best interests. While you cannot have someone declared incompetent because they make decisions you do not agree with, a person can be declared incompetent if they appear to be living in their own reality.

Why Have Someone Declared Incompetent?

People who make rash changes to their will usually have their competence challenged by family members. Corporate executives who are responsible for the jobs of thousands of people will often have their competency challenged if they start showing signs of mental instability.

Getting Started

Your first step in having someone declared mentally incompetent is to hire an experienced attorney who knows how to handle these actions. You should also discuss the matter with other family members, although you do not need their approval to declare someone mentally incompetent. But keep in mind that family members who oppose you can challenge your assertion that a loved one is mentally unstable.

Filing The Petition

You start the process of declaring a person mentally incompetent by filing an official petition with the local district of your state’s probate court. At the same time that you are filing to have someone declared mentally incompetent, you are also filing to become their legal guardian.

Mental Evaluation

Once the petition is filed, the court will need a psychological examination done by a qualified and non-affiliated medical professional. If the person in question refuses to be evaluated, then the court will usually issue an order forcing the evaluation to take place.

The Decision

The court will take in all of the information to make two important decisions. The first decision is whether or not the person in question is mentally incompetent. The second decision is whether or not the petitioner is qualified to act as that person’s guardian.

If the person in question is an adult, then the court will order an investigation of potential fraud by the state’s adult protective services. The petitioner will also need to get an insurance bond and submit it to the court to protect the financial assets of the person in question. Putting all of this together can take months, and often times it is met with significant resistance by the person in question and other members of the family.

When a petition to declare someone mentally incompetent is used to try and publicly humiliate someone or damage their reputation, then the petitioner could face fraud charges. If you decide to try and have someone declared mentally incompetent, then it needs to be for the right reasons and your intentions need to be in the best interests of the person in question.