An incompetent person may be defined as one whose mind is unsound, deranged, or impaired in function, such as a slow I.Q., deterioration, illness or psychosis. Judicial proceedings for the determination of the competency of a person are held, and require that the person to be evaluated have adequate notice of the proceedings. The alleged incompetent must be present or represented by counsel at these proceedings. The court may appoint physicians and other qualified persons to examine, investigate, or represent the alleged incompetent, to assist the court in deciding whether a guardianship is necessary. An incompetency hearing may be held for reasons of protecting the person from harming themselves or others, for appointing someone to manage their affairs, or for commitment to institutional care.
There are several acceptable approaches for performance of competency to stand trial evaluations including standardized methods such as state competency tests. Traditionally, a full-fledged assessment involves a clinical interview, a mental status exam, a psychological test, and a social history, but the modern trend is to rely upon an interview and/or a psychological test. There are a number of psychological tests available in standardized and local variations. Many evaluators use clinical measures of personality and intelligence, such as thestandardized test MMPI-2.
The estate of an incompetent person, person or persons responsible for his or her support, relatives, or the state, depending on the jurisdiction, will be responsible for the expenses of maintaining an incompetent person in a public mental institution. Expenses of maintenance in a private institution must be paid by the estate of the incompetent or by family or relatives.
As a general rule, an agreement entered into by an incompetent person prior to an adjudication of incompetency is voidable and capable of being disaffirmed by a guardian or upon restoration of competency, but not void.
The following is an example of a state statute dealing with incompetent persons:
"[§ 2111.04.1] § 2111.041. Investigation of circumstances of alleged incompetent; communication; report.
(A) At the time of the service of notice upon an alleged incompetent, as required by division (A)(2)(a) of section 2111.04 of the Revised Code, the court shall require a regular probate court investigator appointed or designated under section 2101.11 of the Revised Code or appoint a temporary probate court investigator to investigate the circumstances of the alleged incompetent, and, to the maximum extent feasible, to communicate to the alleged incompetent in a language or method of communication that he can understand, his rights as specified in that division, and subsequently to file with the court a report that contains all of the following:
- A statement indicating that the notice was served and describing the extent to which the alleged incompetent's rights to be present at the hearing, to contest any application for the appointment of a guardian for his person, estate, or both, and to be represented by an attorney were communicated to him in a language or method of communication understandable to the alleged incompetent;
- A brief description, as observed by the investigator, of the physical and mental condition of the alleged incompetent;
- A recommendation regarding the necessity for a guardianship or a less restrictive alternative;
- A recommendation regarding the necessity of appointing pursuant to section 2111.031 [2111.03.1] of the Revised Code, an attorney to represent the alleged incompetent.
(B) The report that is required by division (A) of this section shall be made a part of the record in the case and shall be considered by the court prior to establishing any guardianship for the alleged incompetent."