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
• 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.
• 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