Competency and Capacity
Laws recognize that adults--in most states, people over age 18--have the right to manage their own affairs, conduct business, and make health care decisions. This legal status is called competency. Competency and all the rights that go with it remain in effect until death, unless a court of law determines that a person can no longer manage personal affairs in his own best interest (a status called incompetency) or unless the person willingly transfers those rights to someone else.
Only a court of law can declare a person incompetent and, in doing so, take away a person's right to make decisions. If a person is declared incompetent, then the court must find someone else to act in the person's best interests, unless the person has already named someone by preparing the proper documentation (for example, a durable power of attorney for health care or a living will).
Capacity is a medical judgment, rather than a legal judgment, regarding a person's ability to make decisions about treatment interventions and other health-related matters. Incapacity is a medical judgment in which a doctor or other health care professional deems a person physically or mentally unable to make appropriate medical decisions or to carry them out. A person in a coma cannot make any decisions, whereas a person with a broken leg may be able to make decisions but be unable to carry them out. People with mild dementia may think clearly enough to understand discussions with their doctors and make decisions about their medical care but may be unable to make decisions about their business affairs. People with dementia must depend on their doctors, lawyers, and accountants to evaluate their level of cognition, memory, or judgment before proceeding with medical care or conducting major legal and business transactions. If a doctor finds that a patient is incapable of making medical decisions, he will turn to someone appointed by the patient or to a friend or relative to participate on the patient's behalf. This process of making health care decisions for people who cannot do so is rarely litigated in court.
The issues of incompetency and incapacity come up frequently when older people become ill. Before performing any invasive tests or providing medical treatment, doctors must obtain permission from a person who is able to understand the risks and benefits involved. If a person is not capable of understanding those risks, the doctor will turn to the person named in a durable power of attorney for health care agreement (also called a proxy); if none exists, the doctor may simply turn to the next of kin. A durable power of attorney for health care ensures that health care decisions will be made by the person selected by the patient.
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