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How do we prove a person incompetent due to drugs and alcohol?

There is a family member that is an alcoholic drug addict, he is in jeopardy of being evicted and his electric is off. He is still living in the house, has limited food, other addicts are coming and going in and out of the home. He is in poor health, he miss manages his money quickly then has none to live on and he gets beat up time to time. His children would like to find a way to have him proven incompetent but don't know how to do this. He gets a retirement and is drawing disability. He is 57 years of age. Any help would be very much appreciated.

Status: Open    Nov 08, 2016 - 08:22 AM

Elder Law

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Expert Answers

Nov 10, 2016 - 03:24 PM

You could seek to have him legally committed. You can contact your local sheriffs department or probate court for additional information. A legal commitment is appropriate where someone is in need of immediate protection.

The second step would be starting a protective proceeding, such as a guardianship or conservatorship. These proceedings would allow longer term protection for him. You could manage his personal and financial affairs until he is able to recover (hopefully). Good luck.

Nov 14, 2016 - 09:23 AM

If you are concerned about your loved one who has an addiction to drugs and alcohol, there are two protective proceedings that may be available to you as a means of protecting him: A guardianship, and/or a conservatorship.

A guardianship is where someone is appointed as guardian over the alleged incapacitated person to protect the best interests of his personal welfare. If you served as guardian over your loved one, you would be responsible for making sure he had safe living conditions, that he kept up with medical appointments and took appropriate medications, and that appropriate medical decisions were made on his behalf.

A conservatorship is where someone is appointed as conservator over the alleged incapacitated person's assets and financial affairs. If you served as conservator over your loved one, you would be responsible for preventing the waste of his assets, you would pay bills on his behalf, you would be required to protect his property, etc.

It sounds like your loved one may need both a guardian and conservator. Many states have adopted the Uniform Guardianship Act, which establishes criteria for establishing incapacity of the person at question, and hence establishing a guardianship or conservatorship.

For a conservatorship, you must show the court that the person is "unable to manage property and business affairs effectively for such reasons as mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance," and that either his assets will be wasted or that funds are needed for his health, support, education, or maintenance.

For a guardianship, the requirements for proving incapacity are much more vague. A guardian-ad-litem will be appointed to represent the alleged incapacitated person, and a court representative will often examine the person as well. The court will generally order a doctor to evaluate the person and submit a report. Ultimately, the decision is up to the judge as to whether the person is "incapacitated" or not.

From the facts you described, your loved one certainly may be in need of a guardianship and/or conservatorship. Substance addiction is considered as a factor in the capacity determination, and if your loved one's addiction is preventing him from taking care of himself and his finances, then a guardianship and conservatorship may very well be in his best interest. I would recommend talking to a local elder law or probate attorney for assistance in filing a petition.
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