Capacity and Incapacity

Assessing the need for guardianship

In New York State, individuals may need to have a guardian appointed when a mental, cognitive, or physical condition affects their ability to care for themselves, or to perform Activities of Daily Living (ADLs) which include walking, eating, bathing, and dressing.

Activities and Daily Living (ADLS)

ADLs are basic tasks that persons must perform regularly in order to thrive. ADLs can be broken down into the following categories:

  • Personal Hygiene: A person’s ability to bathe and groom themselves, including oral, nail, and hair care
  • Continence Management: A person’s mental and physical ability to properly use the bathroom
  • Dressing: A person’s ability to select and wear the proper clothes for different occasions
  • Feeding: A person’s ability to feed themselves
  • Ambulating: A person’s ability to change from one position to the other and to walk independently

The level of ADL competency represents a person’s ability to care for themselves, their ability to live independently, and the level of assistance they may need in order to perform the tasks of everyday living.

There are many conditions that may affect a person’s ability to care for themselves. Project Guardianship clients often have multiple conditions that affect them.

Person in Need of a Guardian vs Incapacitated Person

During a guardianship hearing, if a person consents to having a guardian, they are considered a “person in need of a guardian” under the Article 81 New York State Mental Hygiene statute.

If a person does not consent or voluntarily agree to a guardian appointment, a hearing will be held to determine the person’s “capacity” to care for themselves. A judge will consider if the person has limitations (for example, with ADL competency), does not understand those limitations, and is at risk of harm. If all of these conditions are met, a court will determine the person to be “incapacitated," as defined by Article 81, and appoint a guardian.