In litigation, domicile matters because it can control where a lawsuit must be filed and fought. For most of us, where we are domiciled should be straightforward. It’s the place where we actually live and intend to remain. Domicile questions can get a little trickier when someone moves around. Domicile questions can start to get really tricky when the mental capacity of someone is impaired and that person moves around. If domicile requires someone to form the intent to remain in a certain place, how much mental capacity is needed to form that intent?

In Estate of Milton Theophilus Pond, II, the Georgia Court of Appeals considered the domicile of a person whose capacity was sufficiently impaired by autism to warrant a guardianship. The ward lived with his mother in North Carolina during the school year and spent his summers with his father in Georgia. In 2015, the ward refused to return to North Carolina. The father filed a petition for guardianship of his son in Georgia on the grounds that the son lacked sufficient capacity to make or communicate significant responsible decisions concerning his health or safety. A doctor agreed that the son was incapacitated by reason of autism-spectrum disorder.

The ward’s mother, however, claimed that the guardianship action shouldn’t have been filed in Georgia because her son was not domiciled there. Guardianship petitions in Georgia must be filed in the county where the proposed ward is domiciled or is found, provided that the county where the proposed ward is found will not have jurisdiction if the proposed ward was moved to that county for the purpose of filing a guardianship petition. According to the mother, although her son could be found in Georgia, he lacked sufficient mental capacity to intend to move from North Carolina to Georgia and to stay there.

Here is where we must both recognize that capacity is not zero sum and that we need to try to honor the wishes of the ward if we can. Capacity is often a sliding scale. It is possible that someone has the capacity to make certain decisions but not others. That is what the court found here. Although a person who is mentally incompetent and who moves from one place to another may lack the mental capacity to change his or her domicile, it does not follow automatically that someone who is mentally incompetent always lacks the mental capacity to change domicile. This is where the wishes of the ward can come into play. Here, the ward was able to articulate reasons underlying his decision to stay in Georgia. Thus, while their son needed a guardianship because he lacked the capacity to make significant decisions regarding his health and safety, he maintained the minimum capacity needed to change his domicile and he was able to articulate why he wanted to change it.