Capacity (Competence) and Incapacity

By Thaddeus Mason Pope, JD, PhD, Mitchell Hamline School of Law

Reviewed/Revised Oct 2023

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Historically, “incapacity” was considered primarily a clinical finding, and “incompetency” was
considered a legal finding. That distinction, at least in terminology, is no longer firmly
recognized; most state laws now use “incapacity” rather than “incompetency,” although the
terms are frequently used interchangeably (1). The more useful distinction in health care
decision-making terminology now is between

Clinical incapacity

Legal incapacity
People who have clinical and legal capacity with respect to health care have the right to
make health care decisions, including refusal of medically necessary care, even if death may
result from refusal. People who lack both capacities cannot make health care decisions.
However, if a patient deemed by a physician to lack clinical capacity expresses a preference
regarding a health care decision, the physician is not entitled to override that preference
unless a court also deems the person lacks legal capacity to make that decision.

Clinical capacity
Clinical capacity to make health care decisions is the ability to understand the potential
benefits and harms of the proposed health care, to understand possible alternatives, and to
make and communicate a health care decision. Assessment of this capacity requires
evaluation of the following:

Medical factors (eg, the patient's medical condition, sensory deficits, drug adverse
effects, emotional and psychiatric issues)
Functional abilities (physical, cognitive, and psychologic)

Environmental factors (eg, stressful living conditions, availability of helpers,

isolation, time of day variations cased by medication schedules or fatigue)
Appropriate health care professionals determine this type of capacity when needed and
document the determination process. Qualified health care professionals, as defined by
state laws, are legally empowered to make these determinations in almost every state under
state advance directive laws. The courts become involved only when the determination itself
or another aspect of the process is challenged by the patient or someone else.

Clinical capacity is specific to a particular health care decision and thus is limited to that
decision. The level of clinical capacity needed to make a health care decision depends on the
complexity of that decision. A patient with some decrease in capacity, even one with fairly
severe cognitive deficits, may still have enough capacity to make simple health care
decisions, such as whether to allow a rectal examination or placement of an IV. Importantly,
a patient with some decrease in capacity may still have enough capacity to designate a
surrogate decision maker (2). However, the same patient may lack the capacity to decide
whether to participate in a clinical trial.

All feasible attempts should be made to involve the

patient in decision making. Ignoring the decision of Pearls & Pitfalls
patients with capacity or accepting the decision of
Clinical capacity is
patients without capacity is unethical and risks civil
specific to a particular
liability. A patient's ability to carry out a decision is
health care decision and
also important for physicians to assess. For example,
thus is limited to that
a patient with a broken leg may be able to make the decision.
decision to return home but be incapable of self-
care during convalescence. Providing the necessary
support to carry out a decision becomes an important goal of care.

Capacity may be intermittent, variable, and affected by the environment. Patients who lack
capacity due to intoxication, delirium, coma, severe depression, agitation, or other
impairment may regain capacity when their impairment resolves. To obtain consent to treat
a patient who lacks clinical capacity, health care professionals should try to restore their
capacity. If this is not possible, health care professionals must contact an agent or proxy
designated in the patient’s durable power of attorney for health care or another legally
authorized surrogate (Consent and Surrogate Decision Making) (3). If urgent or emergency
care is needed (eg, for an unconscious patient after an acute event) and there is no
designated surrogate or the surrogate is unavailable, the doctrine of presumed consent
applies: patients are presumed to consent to any necessary emergency treatment. The
process of making emergency health care decisions for people who cannot make decisions
for themselves is rarely litigated in court.

Legal capacity
Legal capacity (also called competency) is a legal status; it cannot be determined by health
care professionals. However, health care professionals play an important role in the
assessment process. In the United States, people aged 18 or older are presumptively
considered legally capable of making health care decisions for themselves. Emancipated
minors are people below the age of majority (usually 18) who are also considered legally
capable. The definition of this group varies by state but generally includes minors who are
married, who are in the armed forces, who are financially independent, or who have
obtained a court decree of emancipation. Additionally, in some states, the age of medical
consent is younger than the age of majority (eg, in Alabama, the age of majority is 19 but the
age of medical consent is 14 years old).

People remain legally capable until a judge with appropriate jurisdiction declares them
legally incapacitated with respect to some or all areas of functioning. This declaration usually
occurs through a guardianship or conservatorship procedure in the courts. The legal
requirements for declaring legal incapacity vary by state. However, substantiation of some
combination of the following is typically required:

A disabling condition (eg, intellectual disability, a psychiatric disorder, dementia or

other brain disorder, chronic use of drugs)
A lack of cognitive ability to receive and evaluate information or to make or
communicate decisions
An inability to meet essential requirements of physical health, safety, or self-care
without protective intervention

A finding that guardianship or conservatorship is the least restrictive alternative

for protecting the person

If clinicians question a person’s legal capacity, they may seek a court’s determination through
guardianship or protective proceedings. Clinicians may be asked to testify at or provide
documentation for a hearing to determine legal capacity.

When the court declares a person legally incapacitated, it appoints a guardian or conservator
to make legally binding decisions for the person, either in all matters or in a limited range of
matters specified by the court. Courts can also make decisions about specific issues in
dispute (eg, a particular treatment decision or the meaning of a particular instruction in the
person’s living will).

Increasingly, the least restrictive alternative requirement for diminished legal capacity
includes consideration of technological assistance and supported decision-making.
Supported decision-making is an alternative to having a legal guardian and allows people
with disabilities to keep their rights and their decision-making capacity with the help of
trusted advisors, such as friends, family, or professionals, serving as supporters (see Center
for Public Representation: Supported Decision-Making and National Resource Center for
Supported Decision-Making). Decision supports may involve informal help, technological
assistance (eg, medical monitors that signal a need for action; mobile apps with assistive
technology for people with disabilities), and formal agreements of support.

At least 20 states have recognized formal supported decision-making (SDM) agreements that
can be used to enforce an individual’s right to obtain support from third parties. SDM
agreements should define the elements of a supportive relationship and clearly recognize
that the individual being supported remains the decision maker. States are also increasingly
recognizing supported decision-making in their guardianship statutes as a less restrictive
alternative to guardianship.

References
1. Appelbaum PS: Clinical practice. Assessment of patients' competence to consent to
treatment. N Engl J Med 357(18):1834-1840, 2007. doi:10.1056/NEJMcp074045
2. Pope TM, Bennett J, Carson SS, et al: Making medical treatment decisions for unrepresented
patients in the ICU. An Official American Thoracic Society/American Geriatrics Society Policy
Statement. Am J Respir Crit Care Med 201(10):1182-1192, 2020. doi:10.1164/rccm.202003-0512ST
3. Moye J, Catlin C, Kwak J, et al: Ethical concerns and procedural pathways for patients who are
incapacitated and alone: implications from a qualitative study for advancing ethical practice. HEC
Forum 29(2):171-189, 2017. doi:10.1007/s10730-016-9317-9

More Information
The following English-language resources may be useful. Please note that THE MANUAL is
not responsible for the content of these resources.

Center for Public Representation: Supported Decision-Making

National Resource Center for Supported Decision-Making

Capacity (Competence) and Incapacity Informed Consent