Capacity, Competency, and Guardianship

Amy Tao, M.D., Jeffrey S. Janofsky, M.D.


  • 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

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Last updated: August 2, 2017