special subjects
Capacity (Competence) and Incapacity
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, theleast restrictive alternativerequirement for diminished legal capacity includes consideration of technological assistance and supported decision-making.Supported decision-makingis 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 (seeCenter for Public Representation: Supported Decision-MakingandNational 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. 