Capacity, Competency, and Guardianship

Amy Tao, M.D., Jeffrey S. Janofsky, M.D.
Capacity, Competency, and Guardianship is a topic covered in the Johns Hopkins Psychiatry Guide.

To view the entire topic, please or purchase a subscription.

Official website of the Johns Hopkins Antibiotic (ABX), HIV, Diabetes, and Psychiatry Guides, powered by Unbound Medicine. Johns Hopkins Guide App for iOS, iPhone, iPad, and Android included. Explore these free sample topics:

Johns Hopkins Guides

-- The first section of this topic is shown below --


  • 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

-- To view the remaining sections of this topic, please or purchase a subscription --

Last updated: August 2, 2017