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Can I declare someone financially incompetent?

I just found out that dad hasn't paid any of his bills for 6 months & they are threatening to shut off his utilities. He does fine at home except for this, can I have him declared financially incompetent?
Status: Open    Sep 09, 2014 - 07:40 AM

Elder Law

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6 answers

Expert Answers

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

No one has the ability to assert authority on behalf of another without either a power of attorney (a document, knowingly and voluntarily signed by the principal in which the principal grants authority to an agent), or the court's intervention by way of the creation of a guardianship.

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.

Voted Best Answer

Dec 01, 2014 - 08:33 AM

I have slowly automated most of my aunt's regular bills. She was skeptical at first because she wasn't sure she would know what had been paid and the amount that had been paid. So, I started with one bill, and she saw that she would still receive a bill, but that it would say, "Do Not Pay" on the amount due line. I also set up her bank account to automatically transfer funds from her savings to her checking so that her checking account would always maintain a certain balance, and in that way we would not have to worry about being overdrawn. Check with his bank to see what they can do to help with this.

In the interim as I slowly added another bill for auto-pay, I wrote out all of the checks for the bills, marked the bill stub as paid, noting the check number, amount and date, placed a stamp and return address on the envelope, and laid out everything so that she would just have to sign the check, and I would follow up with placing payment and bill stub in the envelope and mailing it.

The process was gradual, and happened in baby steps, but it has relieved her of the chore of paying bills. I also have the power of attorney so that I can write some checks as such on her checking account. We did that together at the bank. The bank will need to have a copy of the POA document.

I hope this helps.


Nov 29, 2014 - 06:45 PM


Feb 15, 2015 - 06:14 PM

Having someone declared financial incompetent is time consuming and expensive. Better that you get a Power of Attornwy for your dad's bank accounts. I have been dealing with my aunt's bills for over a year now and I had to do it slowly. It took hours to get her to write out the checks for her bills so finally I started taking them home with me. Took her to the bank to get Power of Attorney for her accounts and slowly either changed the billing address or had the bills sent to me online. She tends to lose her mail so having everything transferrred to my address or by email, has saved me many hours of driving time (she is 60 miles away from me) and allowed me to make sure all her bills are paid on time. Since she uses the same bank as I do, I was able (with the bank power of attorney) to have access to online banking for her. With that POA I can pay her bills online and transfer funds from her CD to her checking account over the phone. I hope this helps you.

Source: JoeyB

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