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Hopeisalive

incompetent

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If a person is declared mentally incompetent I would think that any contract or agreement they sign would be void as they are not of sound mind.


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Let's look at this a little closer...

What government agency has made this declaration?

If a person is declared incompetent in this individuals particular state of residency are they legally able to marry?

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I'm probably going to get jumped on for this, but here goes. Why would you want to get married to someone who is declared mentally incompetent?

I won't jump you but why do you assume the OP is not the one who has been declared?

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If someone is declared 'mentally incompetent,' then NO they would not be able to petition for K1 visa.

Being declared as such means you are unable to handle your own affairs and someone else is assigned to that task. You can not enter into ANY contract, which includes

enter contracts.

consent to medical treatment.

make a will.

drive a vehicle.

get married.

give a power of attorney.

If they did file a petition for whatever reason and it went through because USCIS did not know they were declared as such, someone in their life would become aware of it when the fiance 'arrives' and stop the wedding as the person would be unable to enter into the marriage.

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If both petitioner and beneficiary are legally free to marry then my opinion is that there is a good probability that the petition could well be approved. The problems my arise if a person, who has been deemed incompetent, attempts to enter into a financial agreement with the federal government (ie, I-864).

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the petition could theoretically be approved if USCIS has no knowledge that the petitioner has been deemed mentally incompetent, but the marriage will not be able to take place because marriage is a contract between two adults and a mentally incompetent person can not enter into it.

So if person conducting the review at the foreign embassy is aware the US petitioner is declared mentally incompetent and the marriage will never take place- the fiance will be denied and the visa will never even be issued on those grounds alone.

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the petition could theoretically be approved if USCIS has no knowledge that the petitioner has been deemed mentally incompetent, but the marriage will not be able to take place because marriage is a contract between two adults and a mentally incompetent person can not enter into it.

So if person conducting the review at the foreign embassy is aware the US petitioner is declared mentally incompetent and the marriage will never take place- the fiance will be denied and the visa will never even be issued on those grounds alone.

I respectfully think that this may not be correct depending on the extent and type of incompetency.

I believe he right to marry is protected by the constitution and again by the AWDA and I think that most states have laws regarding the right to marry.

One is deemed mentally incompetent when diagnosed as mentally ill, mentally retarded, senile, or suffering from some other disability that prevents them from managing their own affairs. A guardian is normally appointed to assist that person in carrying out their affairs.

As you state marriage is a contract and according to contract law, if the nature, purpose, and consequences are not fully understood due to the lack of mental capacity, the contract is voidable on the discretion of the mentally incompetent individual. It doesn't preclude them from entering into the contract. Contract laws tend to define mental incompetency as lacking the capacity needed to undergo a legal process. That decision is usually made by a probate judge.

Individuals with mental incapacities enter into contracts everyday under the guidance of their mental health care provider and legal guardians.

Just my 2 cents...

It might not be an easy task to make it straight to visa approval and I would suggest a consultation with an experienced immigration attorney but I don't think the law would prohibit it.

Edited by Operator

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I was just wondering, i have looked around on google, but so far i could not actually find what i was looking for.

If someone is declared mentally incompetent, can they still petition for a k1 visa. - the petitioner i am asking about.

It depends on state laws. If someone has been deemed mentally incompetent, then they have a legal guardian that is the decision maker for the person. If the legal guardian is OK with petition and marrying, then they will do so. There are also clauses with legal guardianship where the guardian allows the person to make decisions abour marriage without their consent.


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Well the OP posted a very simple one line question. They gave no specific details about the case or the parties involved. So I gave a general answer.

I dont disagree that people who are declared as such dont have the right to marry.

The simple facts are in order to file a K1 petition you

must be a citizen

intend to marry within 90 days

you are free to marry

and you met with in 2 years or qualify for a waiver of that requirement

So the 'hitch' here is the free to marry clause. A person deemed mentally incompetent usually is not free to marry with out the consent of their legal guardian. (unless like posted above theres a clause that allows them to marry but not control their finances)

Therefore the initial petition would only be approved if USCIS had no knowledge of the fact that the petitioner was deemed mentally unfit.

There would be further issues as the K1 process moves along, as the petitioner would have to submit the I134 aff of support, which is a contract they would be unable to legally sign on their own.

So a person deemed mentally unfit would not be able to obtain a K1 visa w/o the support of their guardian. And even with the full support of their guardian it would be a difficult case, as the fiance would have to prove to the embassy that the relationship is legitimate.

IMO if someone is in this situation, where one person is disabled and has a guardian, the easier path would be the spousal visa route. When you compare the K1 to the spousal visa route, the cost and processing time is very similar, and if the petitioner has the full support of their guardian, then it shouldnt be a problem to marry their love and have the guardian help them with the necessary paperwork to bring them to the US.

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