Incompetent Persons

An incompetent person acquires their domicile by the operation of law[i].  The domicile of origin is assigned to a person by operation of law.  However a person can change the domicile of origin by their own act if they are legally capable[ii].  Generally an incompetent person is considered incapable of changing their domicile and to form an intention to change domicile.  A change in domicile must be made voluntarily by a person who has the legal capacity to do so[iii].  Thus an incompetent person cannot change his/her domicile without a court’s consent[iv].

A person who is incompetent by birth or adjudged by a court as incompetent cannot acquire a domicile of choice.  However, if such an incompetent person is able to prove his/her capability, then s/he can acquire a domicile of choice.  A court must consider the multiple circumstances surrounding an incompetent person’s positive statement on domicile to protect the best interest of an incompetent person[v].  Thus the question of capacity in a given case is evaluated on the basis of its facts.

A person who is incompetent right from the time of birth will hold the parent’s domicile or the guardians domicile in the absence of parents[vi].  In the case of an incompetent child to a divorced couple, the child will take the domicile of the parent who has custody of the child[vii].  If the incompetent child after reaching majority continues to be incompetent, he/she will continue with the parent’s.  While in the case of persons who had been adjudged as incompetent, such persons will continue the domicile which they possessed before the adjudication[viii].

However, an adult who is adjudged as incompetent cannot acquire a domicile of choice unless such incompetence is declared as terminated by a court of the state that passed the order of incompetence.  Thus a person who is adjudged as incompetent cannot establish a domicile of choice even if s/he is competent according to their present mental condition[ix].

When a mentally incompetent person is voluntarily sent to another place for medical treatment and improvement of health, such incompetent person will not acquire a new domicile by the fact that s/he has acquired a residence in the hospital or private home located in another state[x].

In some circumstances the domicile of an incompetent person can be changed by the act of another as a matter of fact or a matter of law[xi].  If the court feels that the best interest of the incompetent person requires a change in his/her domicile, then the court will allow the guardian of the incompetent person to change the domicile of an incompetent[xii].  However the court will not allow a change in domicile of the incompetent person if there is any statute prohibiting the change of incompetent person’s domicile.

Generally a court’s permission is required for changing the domicile of the incompetent person.  Any change made by the guardian in the domicile of an incompetent person without the order of the court is invalid[xiii].  However, a change in the incompetent’s domicile can be validated by a subsequent ratification by the court having jurisdiction over the incompetent[xiv].  Some courts have held that prior approval of the court is not required for a guardian to change the incompetent’s domicile.  Provided the guardian must have made the change in good faith and for the welfare of the incompetent[xv].

[i] In re Seyse, 353 N.J. Super. 580 (App.Div. 2002)

[ii] Matthews v. Matthews, 141 So. 2d 799 (Fla. Dist. Ct. App. 1st Dist. 1962)

[iii] Barnes v. Barnes, 1961 Pa. Dist. & Cnty. Dec. LEXIS 76 (Pa. C.P. 1961)

[iv] In re Estate of Peck, 80 N.M. 290 (N.M. 1969)

[v] McEachron v. Glans, 983 F. Supp. 330 (N.D.N.Y 1997)

[vi] Mauro v. Department of Mental Hygiene, 207 Cal. App. 2d 381 (Cal. App. 1st Dist. 1962)

[vii] Goldsmith v. Salkey, 115 S.W.2d 778 (Tex. Civ. App. 1937)

[viii] In re Webber’s Will, 187 Misc. 674 (N.Y. Sur. Ct. 1946)

[ix] In re Curtiss, 199 N.Y. 36 (N.Y. 1910)

[x] Sporza v. German Sav. Bank, 192 N.Y. 8 (N.Y. 1908)

[xi] Gluc v. Klein, 226 Mich. 175 (Mich. 1924)

[xii] Anderson v. Estate of Anderson, 42 Vt. 350 (Vt. 1869)

[xiii] In re Guardianship of Mickler, 152 So. 2d 205 (Fla. Dist. Ct. App. 1st Dist. 1963)

[xiv] In re Robitaille, 78 Misc. 108 (N.Y. Sur. Ct. 1912)

[xv] Grier v. Estate of Grier, 252 Minn. 143 (Minn. 1958)


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