Legal Issues

Defining Competency and Capacity

The termscompetency andcapacity should be distinguished. Competency is a legal term that refers to an individual's abilities to make decisions independently regarding specific criminal or civil issues. Competency is determined in legal proceedings. Capacity is a clinical determination made by health care professionals that refers to a person's ability to perform specific tasks. Capacity is not the proverbial “all or nothing”; rather, people have the capacity to make specific decisions and engage in specific behaviors.

Legal definitions of competency are predicated on four components: (a) presence of a disabling medical condition, (b) cognitive impairment, (c) functional impairment, and (d) risk. Having a disabling medical or psychiatric diagnosis (e.g., Alzheimer's disease, schizophrenia) does not automatically make someone [Page 320]incompetent. Rather, the disease must be judged to have caused cognitive impairment that in turn leads to functional impairment in daily living and decision making (i.e., limited capacity), thereby placing the person at an unacceptable level of risk. This risk may be defined either as physical risk to himself or herself or others or as functional risk regarding ability to manage finances and make decisions about family and assets.

Determining Competency

An individual is considered to be legally competent unless another person questions his or her competency and files a legal petition to determine the person's competency. For older adults, questions regarding competency are most common for civil matters, especially medical decision making, estate, and living arrangements. The challenging person is usually a family member, but a health care professional may file a petition. The petition leads to a court hearing or, in some instances, an administrative hearing, during which time medical evidence and other testimony are presented to a judge, who makes the final determination of legal competency.

Assessing Capacity

Medical evidence is used to document the presence of a disabling condition and the person's level of capacity. First, an appropriate medical examination should be conducted to diagnose the underlying disease or disorder. Capacity assessment is performed by a psychiatrist, a psychologist, or another health care professional with similar competence in cognitive and psychiatric assessment. It focuses on cognitive and functional impairment and risk, with a primary focus on decisional capacity. Reassessment may be needed in cases of progressive or fluctuating conditions.