Aug 04, 2015 - 10:22 AM
Declaring your father incompetent is usually a probate court matter. You could petition for conservatorship and thereby ask the judge to declare your father incompetent.
Aug 05, 2015 - 09:02 AM
In Tennessee, a court must find that a person is “incapacitated” or “a person with a disability” before the court will establish a conservatorship for that individual. So I guess there are really two issues: (i) if you think your parent needs a conservator to manage his/her affairs for him/her, you need to prove he/she is incapacitated or disabled; then (ii) you need to decide who you would nominate to take over those rights and duties and become your parent’s conservator.
Aug 06, 2015 - 07:39 AM
There is a lot of confusion as these two courses of action:
1. Power of attorney: If your father is mentally competent, ask him whether he is willing to sign a power of attorney authorizing you to act as his financial agent. If so, you would have authority to pay bills, sign checks, and generally manage your father's financial affairs.
If your father agrees to create the document, it is best that your father makes arrangements on his own. I work in estate litigation and too often see powers of attorney challenged on the basis of undue influence. Rightly or wrongly, claims are made that the parent transferred authority to one child instead of another because of pressure exerted on the vulnerable parent. If your father can make independent arrangements for the power of attorney, the document has a much better possibility of surviving a challenge.
2. Guardianship: If you believe that your father lacks the mental capacity to handle his affairs, and your father has made no arrangements for another to act on his behalf, state intervention will be required.
In the State of New Jersey, two physicians are required to provide signed affidavits that the individual lacks mental capacity. Once the affidavits are in place, a court action must be filed seeking the transfer of authority through the creation of a guardianship.
The expense and complexity of a guardianship action (in comparison to the creation of a power of attorney) is a great argument on behalf of getting a power of attorney in place before there is any question of a parent's mental incapacity.