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When Is Someone Legally Incompetent?

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Legally incompetent status

What does it mean to have someone declared legally incompetent? And how does that happen, anyway?

The concept of competence in the law is surprisingly confusing. Most people think they know how to judge that someone would be legally incompetent. Very often they are wrong.

Incompetent, or incapacitated?

First we have to deal with language. Most people, and many lawyers, think and speak about “incompetence.” The law in most states, though, addresses “lack of capacity.”

Is the difference substantive, or is it a case of two phrases with equivalent meaning? The terms may be largely interchangeable, but there are some subtle differences.

Some lawyers like to explain that doctors (and other medical providers) can judge competence, but that the legal system decides capacity. That’s not quite correct, either. It is true, though, that competence is a term more often seen in medical reports, and capacity is the favored term in legal documents.

We most often hear the phrase “legally incompetent” from people who are neither lawyers nor doctors. That’s the general term we use here. But the use of language has varied considerably, even in the past few decades.

The Arizona Constitution, for instance, for almost a century limited the right to vote in the state. Who couldn’t vote? Anyone who was “under guardianship, non compos mentis, or insane.” In 2004 Arizona voters modernized that language to instead prohibit voting by anyone who has been “adjudicated an incapacitated person.” So that sounds like a good place to start.

Incapacity, guardianship and conservatorship

In 1974 Arizona adopted an early version of the Uniform Probate Code. That law requires a showing of incapacity before appointment of a guardian. That means that the person “lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.” One wrinkle: the court can appoint a limited guardian for someone who is not found to be an incapacitated person (that can preserve their right to vote).

Conservatorship of the estate, though, does not require a finding of incapacity. In fact, the Arizona statutes are clear: appointment of a conservator is no finding as to the capacity of the person subject to the order. So there’s a quick distinction among several different kinds of competence (or capacity). Having a guardianship demonstrates that the person is legally incompetent, but having a limited guardian, or a conservator, does not.

But who gets to decide that someone needs a guardian (or, for that matter, a limited guardian or a conservator)? In Arizona, Superior Court judges make that decision. But they don’t get to rule in a vacuum. There must be a written report documenting the incapacity. That report must be signed by “a physician, psychologist or registered nurse appointed by the court.” As a practical matter, that means the decision is dependent on medical personnel.

But note: the mere existence of a diagnosis, or even a medical evaluation, does not determine that someone is legally incompetent. Until a Superior Court judge says so, there is no such finding.

What about capacity, or competence, for other purposes?

Lawyers often speak of “testamentary” capacity. We understand that phrase to mean that someone knows who their family members are, what assets they have (at least in a very general sense), and what it means to make a will. Notice what’s missing from that description? There’s no reference to an inability to make or communicate responsible decisions. There’s also no reference to a required medical evaluation.

In fact, as we have described before, a person who has a guardian may still be able to sign a will (at least in Arizona). A person under guardianship may even have the capacity to get married, hire an attorney, or any of a number of other things. In other words, the level of capacity required for different acts varies according to the act in question.

Here’s a (perhaps surprising) point: even someone who is incapable of managing their own finances might be capable of signing a power of attorney to delegate that task to someone else. Similarly, someone who lacks capacity to make medical decisions might still be able to sign a health care power of attorney. That might not really be much of a stretch. After all, most of us lack the capacity to run a major American corporation. But we can still purchase stock in the company and delegate management to people who do have that ability.

So, does “legally incompetent” actually mean anything?

Not much, really. Once a judge rules that a person is incapacitated (as a synonym for incompetent), they still might be able to do all manner of things. It’s not like they have an identifying mark, or a note on their driver’s license.

Actually, that’s not quite right. One thing that surprises many people about guardianship: you lose the right to drive in Arizona. There is a mechanism to allow people under guardianship to drive. But those orders are not very common.

Most importantly, a person with a diagnosis of dementia (or any other condition affecting cognitive function) is not “incompetent” by virtue of that diagnosis. The legal system strives to treat people with dignity and to grant them autonomy. That remains true even after a finding of incapacity — or incompetence.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.