Can I be declared incompetent without my consent?

Baffled asked...

Can my daughters claim me incompetent without my other two children knowing and how can I stop them? They are very money hungry. I collect a small amount of royalties and have disability check because I had a stroke. What can I do to stop them from doing something behind my back? I had a will but is now missing.

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

The power sits with you to stop the scary Kafkaesque spectacle of being declared incompetent when you're not.

First, rest assured that it is not that easy to declare that a person is legally incompetent. For example, before a power of attorney can be activated so that the named agent takes over decision-making, two medical doctors must generally examine a person and conclude that he or she is not able to comprehend basic transaction and is unable to make decisions for himself or herself.

Likewise, before a judge will appoint someone to take over as guardian or conservator for an adult, there must be good and strong evidence that he or she is mentally incompetent. And the judge will usually scrutinize and question the person for whom the conservatorship is being sought before making any final decision.

If you remain concerned about the possibility of being declared incompetent, take the step of seeing a doctor you trust who would be ready to vouch for your mental and physical capabilities.

It may also behoove you to make a mental note of others who could bolster that diagnosis"”for example, friends with whom you play a regular bridge game, neighbors and relatives who have observed that you are able to live and care for yourself, colleagues who can attest to your volunteer work"”that sort of thing.

You would also be wise to take an inventory of the legal documents you have in place or should complete: a will or trust, advance directive for healthcare, power of attorney for finances. Review them to make sure they express your current wishes.

It's a concern that you are no longer able to locate your will. If you contacted an attorney for help in drawing it up, ask him or her to provide you with a new copy and keep it in a safe place. If you can't locate the document or it no longer reflects your wishes, simply complete a new one that does; in the legal world, the most recent document trumps older ones.

Finally, if your daughters are truly interfering with your life in a wrongful way"”such as by taking or altering your legal documents"”they may actually be guilty of elder abuse. Consider discussing the matter confidentially with representatives from your local Area Agency on Aging. You should be able to find the nearest office through the group's national website at