For many in Hennepin, the thought of having their decision-making privileges given to another without their consent may provoke fear and anger. However, that is exactly what they may face if they are determined to be incapacitated. Adult guardianship cases are not all that uncommon in the U.S.; while information collected by the National Center for State Courts puts the number of such cases at only 87 per every 100,000 American adults, those numbers only reflect statistics shared by 14 states (Minnesota was not one of them). Thus, the actual number of cases could be much higher.
The determination of one’s capacity to adequately care for him or herself is made by the court. In Minnesota, the law defining incapacitation states that in order to be classified as such, a person must meet both the following criteria: First, he or she does not demonstrate the capacity of understanding needed to make sound decisions related to him or herself. Next, he or she must exhibit behavioral deficits that call into question the ability to see to his or her own personal needs regarding:
- Health care
- Safety
- Shelter
- Nutrition
- Clothing
A review of one’s capacity by the court can be initiated by any person interested in the supposedly ailing individual. This can include family members, health care agents, attorneys, government agency representatives, and people who have lived with him or her for more than six months.
Those who wish to retain control over whom is selected to be their guardian may be able to do so through proper planning. Assigning power of attorney to a family member prior to becoming incapacitated can ensure that one has his or her choice of who makes decision on his or her behalf.