Establishment

Determination of Capacity

The establishment of a guardianship or conservatorship is predicated on the determination of incapacity. Legal definitions of incapacity vary from state to state. The Uniform Guardianship and Protective Proceedings Act (UGPPA 1997) uses a definition of an "incapacitated person" to describe an individual who lacks the ability to "receive and evaluate information or to make or communicate decisions to the point that the person's ability to care for his or her health, safety or self is compromised" (ยง 102(5)). The definition emphasizes the importance of a functional assessment and underscores the fact that capacity fluctuates from situation to situation.

The National Probate Court Standards call on the imposition of a guardianship or conservatorship "based on clear and convincing evidence of the incapacity of the respondent and that a guardianship or conservatorship is necessary to protect the respondent's well-being or property" (Standard 3.3.9). Evidence should come from professionals and experts who are qualified to assess the physical and mental condition of the respondent. The evidence should be used to consider whether a less restrictive alternative might be more appropriate.

Capacity is multifaceted. For instance, a mental illness diagnosis does not dictate whether an individual has legal capacity. Capacity can potentially be enhanced with education, training, rehabilitation, treatment, therapy, community services, and assistive devices. For this reason, the Standards recommend that court reports prepared by professionals and experts include an appraisal of the functional limitations of the respondent.

The American Bar Association and the American Psychological Association, in partnership with the National College of Probate Judges, published the Judicial Determination of Capacity of Older Adults in Guardianship Proceedings. The handbook discusses six pillars of capacity: (1) medical condition, (2) cognition, (3) everyday functioning, (4) values and preferences, (5) risk and level of supervision, and (6) means to enhance capacity. The steps to determining capacity are outlined in the graphic.


See our capacity section (link to Capacity under Aging section) for more information.

Resources