special subjects
Capacity (Competence) and Incapacity
Introduction
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 ( References ). 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. 