Guardian of an Incapacitated Person

Minnesota Guardianship Law

Incapacitated person is a legal term. The lay term is basically incompetent. In everyday usage, we usually talk about persons who are unconscious or in comas as being incapacitated. In the legal world, incapacitated simply means a state of lacking sufficient capacity.

The actual Minnesota statutes on guardianship state that an incapacitated person is "an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance."

Incapacity does not necessarily mean mental retardation, though such is often the case. Incapacity never means physical disability alone. A person with a physical disability but full mental capacity can make his or her own decisions perfectly well. Guardians are only needed to make decisions in the shoes of wards, and persons with full decision-making ability—regardless of physical ability—do not need others to make decisions for them.

The physical ability to perform an action is not the same as having the capacity to know and understand that, if you could, you would take such an action.

The elders of our society often find themselves in the unfortunate position where, because they are less able to do things, their relatives think they are less able to think things.

Being unable to drive, requiring a walker, or needing help carrying groceries are not proper factors in considering guardianship.

An attorney can help you determine whether or not the circumstances call for appointment of a guardian. If you are in Minnesota and want to discuss the case with a lawyer, call me, Minnesota guardianship attorney, for a consultation.