Competency vs. Incompetency

We often casually refer to someone as "incompetent" meaning that they are not doing what we expected them to do. However, in a legal context, the word "incompetent" has a specific meaning and definition. Legally speaking, incompetency is the inability to manage one's own affairs because of injury or disability and does not understand his or her legal rights or liabilities. Sometimes, depending on the type of legal proceeding incompetency is defined as an inability to understand the nature and object of the proceedings or to assist in the defense of a claim.

In Arizona, the task of determining competency is left to the courts. Obviously, if a person is incompetent they will need assistance in managing their affairs both financial and physical. The law provides for the appointment of a person to take care of the incompetent's physical well being, called a guardian, and to take care of their financial affairs, called a conservator. The action in court is called a guardianship/conservatorship. A guardianship/conservatorship may proceed either with or without the permission of the incapacitated individual. You may also obtain a guardianship of the person without a conservatorship and conservatorship without a guardianship.

In all cases where a person is in need of a guardianship and/or conservatorship, the court will always appoint an attorney to represent the incapacitated person, and will order a medical and psychological review of the person's mental state before granting the guardianship/conservatorship order.

If you are caring for someone who you feel has challenges and may be incapacitated, you should seek competent legal advice about being appointed the guardian and/or the conservator for that person.

At Jackson White, we can assist you with both guardianships and conservatorships. Please give me a call if you have any questions.