Capacity, Competency, and Guardianship
DEFINITION
- Competency (sometimes called legal capacity)
- A judicial determination of legal status
- Made by a JUDGE, not a physician
- Denotes a person’s legal ability or inability
- Multiple areas of competency may be addressed in legal settings, such as competency to:
- Stand trial
- Be executed
- Be a parent
- Make a will
- Sign a contract
- Make health care decisions
- Judges make final decisions about competency, sometimes after input from psychiatrists and psychologists, or other physicians.
- Court opinions about competency should generally be left to psychiatrists with specific training in forensic psychiatry, except for competency to make health care decisions.
- Capacity (sometimes called clinical competency)
- Assessed by a PHYSICIAN, not a judge
- A clinical opinion regarding a patient’s decisional abilities to make health care decisions
- Assessment based primarily on the patient’s capacity to understand an informed consent discussion
- Elements of informed consent
- Knowing
- What the procedure is
- Risks
- Benefits
- Alternatives
- Voluntary
- Competent
- Knowing
- Guardianship
- A legal intervention in which a person’s decision-making capacities are assessed
- 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
- Also called a durable power of attorney for health care
- 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: August 2, 2017
Citation
Tao, Amy, and Jeffrey S Janofsky. "Capacity, Competency, and Guardianship." Johns Hopkins Psychiatry Guide, 2017. Johns Hopkins Guides, www.hopkinsguides.com/hopkins/view/Johns_Hopkins_Psychiatry_Guide/787159/all/Capacity__Competency__and_Guardianship.
Tao A, Janofsky JS. Capacity, Competency, and Guardianship. Johns Hopkins Psychiatry Guide. 2017. https://www.hopkinsguides.com/hopkins/view/Johns_Hopkins_Psychiatry_Guide/787159/all/Capacity__Competency__and_Guardianship. Accessed November 29, 2023.
Tao, A., & Janofsky, J. S. (2017). Capacity, Competency, and Guardianship. In Johns Hopkins Psychiatry Guide https://www.hopkinsguides.com/hopkins/view/Johns_Hopkins_Psychiatry_Guide/787159/all/Capacity__Competency__and_Guardianship
Tao A, Janofsky JS. Capacity, Competency, and Guardianship [Internet]. In: Johns Hopkins Psychiatry Guide. ; 2017. [cited 2023 November 29]. Available from: https://www.hopkinsguides.com/hopkins/view/Johns_Hopkins_Psychiatry_Guide/787159/all/Capacity__Competency__and_Guardianship.
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