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.
• 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