Legal
Signs of Incompetence
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After brain injury, many differences will be noted in the personality and lifestyle of the injured person. Some of the differences noted may affect the individual’s ability to function on a daily basis. At times, the differences may be so extreme as to render the person with brain injury legally incompetent.
Legal incompetence means to be of unsound mind and/or body to the extent that one does not have the capability to manage the ordinary affairs of their life. Concerns of legal incompetence frequently arise in the context of brain injury. Most often, it is the family members and caregivers who witness the changes in the individual with brain injury that raise the issue of competency.
Family members and caregivers see the daily difficulties experienced by the person with brain injury. The family member or caregiver concerned about competency should consult a treating physician or an attorney to address questions concerning their personal circumstances. While it is impossible to list all the potential signs of incompetence, the following are examples of signs that are often associated with issues of competency:
- Physical limitations that render the individual unable to express their needs;
- Memory loss that effects daily activities;
- Dementia;
- Extreme depression or emotional reactions;
- Inability to manage daily financial affairs;
- Inability to complete daily household activities;
- Inability to maintain personal hygiene;
- Inability to maintain and manage appointments or schedules;
- Inability to maintain daily medication routines;
- Failure to follow a physician’s orders; and,
- Failure to follow medical recommendations.
It is very important that the family members and caregivers of a person with brain injury realize that no single sign clearly defines incompetence. For example, the person may not be able to manage the complexities of their personal finances yet the same person can maintain routines within their own household. The determination of competency in the example requires much further investigation than merely looking to two factors. It is often necessary to turn to experts such as physicians and attorneys to fully explore issues of competency.
As Courts consider issues of competency on a case-by-case basis, looking closely at the facts of each individual’s circumstances, it is important to have a clear understanding of where the person with brain injury is challenged or incapable of coping with their daily activities. A close observation of the person’s daily activities and obligations must be made in order to determine if their situation may warrant the appointment of a legal guardian.
Lori E. Jolly is an attorney with Commander & Pound.
lori@commanderpound.com