Capacity, Competency, and Guardianship
DEFINITION
- Courts and scholars now tend to distinguish “competence” (legal) vs “capacity” (clinical), but some statutes, case law, and physicians still use the terms interchangeably.
- Competency is a judicial determination of legal status, made by a judge, not a physician, denoting a person’s legal ability or inability in specific domains (e.g., to stand trial, make a will, or consent to health care)
- Judges make final decisions about competency, sometimes after input from psychiatrists and psychologists, or other physicians. Forensically trained psychiatrists may play a role here.
- Capacity is a clinical opinion regarding a patient’s decisional ability to make health care decisions. It is assessed by a physician (from any specialty, not just psychiatry), not a judge, and is an assessment based primarily on the patient’s capacity to understand an informed consent discussion. Elements of informed consent include knowing what the procedure is, risks, benefits, and alternatives.
- Guardianship is a legal intervention in which a person’s decision-making capacities are assessed, and after a judicial hearing, rights may be removed for a person (the ward) if the person is adjudicated incompetent and assigned to another person (the guardian).
- Guardianship orders are individualized. A person may retain rights to make certain decisions, and other decision-making rights may be assigned to the guardian.
- To find out which decision-making powers are assigned by the court to the guardian, the specific guardianship order must be reviewed.
- Medical decision-making may or may not be one of the decision-making powers removed from a ward and assigned to a guardian.
- Guardianship orders are individualized. A person may retain rights to make certain decisions, and other decision-making rights may be assigned to the guardian.
- Advance directive is also called a durable power of attorney for health care. It allows a currently competent person to:
- Appoint a health care agent (also called an attorney-in-fact) to make health care decisions should the person become incompetent in the future
- Lets the world know what heath care decisions the person wants carried out under specific circumstances
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Last updated: September 26, 2025
Citation
Gary, Joseph, et al. "Capacity, Competency, and Guardianship." Johns Hopkins Psychiatry Guide, The Johns Hopkins University, 2025. Johns Hopkins Guides, www.hopkinsguides.com/hopkins/view/Johns_Hopkins_Psychiatry_Guide/787159/all/Capacity__Competency__and_Guardianship.
Gary J, Tao A, Janofsky JS. Capacity, Competency, and Guardianship. Johns Hopkins Psychiatry Guide. The Johns Hopkins University; 2025. https://www.hopkinsguides.com/hopkins/view/Johns_Hopkins_Psychiatry_Guide/787159/all/Capacity__Competency__and_Guardianship. Accessed October 22, 2025.
Gary, J., Tao, A., & Janofsky, J. S. (2025). Capacity, Competency, and Guardianship. In Johns Hopkins Psychiatry Guide. The Johns Hopkins University. https://www.hopkinsguides.com/hopkins/view/Johns_Hopkins_Psychiatry_Guide/787159/all/Capacity__Competency__and_Guardianship
Gary J, Tao A, Janofsky JS. Capacity, Competency, and Guardianship [Internet]. In: Johns Hopkins Psychiatry Guide. The Johns Hopkins University; 2025. [cited 2025 October 22]. Available from: https://www.hopkinsguides.com/hopkins/view/Johns_Hopkins_Psychiatry_Guide/787159/all/Capacity__Competency__and_Guardianship.
* Article titles in AMA citation format should be in sentence-case
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AU - Janofsky,Jeffrey,M.D.
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PB - The Johns Hopkins University
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