Medically Incompetent vs. Conservatorship

According to the Stanford University School of Medicine, a person is legally deemed medically incompetent if she is unable to do certain activities. For example, the person cannot answer questions about recommended treatment intelligently. She cannot participate in decisions regarding her treatment using rational thought processes. In addition, she does not understand what constitutes minimum basic medical treatment even after a physician, nurse or aide explains. Basic medical treatment includes the nature and seriousness of an injury or illness, the treatment, the benefits and risks being recommended and the consequences of skipping treatment.

A conservatorship is a proceeding that gives you authority over your loved one's personal affairs. Through this proceeding, you become the conservator. A probate conservatorship is a judicial proceeding that appoints you to manage your loved one's medical, financial or personal affairs. When the court establishes the conservatorship, it grants you powers while restricting your loved one's powers over her medical and financial decisions.

You may believe or determine through conversations with your loved one's physicians or through in-depth observations of your own that your loved one is medically incompetent. If your loved one did not create other documents that could help in this situation -- for example, a living trust or durable power of attorney -- then you may need to pursue a conservatorship. Without pre-existing documents or arrangements that would allow you to manage her medical, personal care or financial affairs, a conservatorship may be your only viable alternative.

According to the Family Caregiver Alliance, to become a conservator for your loved one, you must file a petition with the applicable court to appoint a conservator for her. You must include facts and supporting documentation, such as a summary of your observations and physician notes from medical and physical evaluations. The court will use these facts as the basis of its investigation. After filing, a court investigator will interview your loved one and determine if an appointment of a conservator is justified.

If the investigator agrees that an appointment is justified, the court will schedule your petition for a hearing. You and your loved one must appear in court unless your loved one is medically incapable of attending. The judge will rule using your petition, the investigator's findings and any evidence presented during the hearing. If the judge rules in favor of a conservatorship, he will specify the types of powers to grant you as the conservator.