What does it mean to have someone declared legally incompetent? And how does that happen, anyway?
The concept of competence in the law is surprisingly confusing. Most people think they know how to judge that someone would be legally incompetent. Very often they are wrong.
Incompetent, or incapacitated?
First we have to deal with language. Most people, and many lawyers, think and speak about “incompetence.” The law in most states, though, addresses “lack of capacity.”
Is the difference substantive, or is it a case of two phrases with equivalent meaning? The terms may be largely interchangeable, but there are some subtle differences.
Some lawyers like to explain that doctors (and other medical providers) can judge competence, but that the legal system decides capacity. That’s not quite correct, either. It is true, though, that competence is a term more often seen in medical reports, and capacity is the favored term in legal documents.
We most often hear the phrase “legally incompetent” from people who are neither lawyers nor doctors. That’s the general term we use here. But the use of language has varied considerably, even in the past few decades.
The Arizona Constitution, for instance, for almost a century limited the right to vote in the state. Who couldn’t vote? Anyone who was “under guardianship, non compos mentis, or insane.” In 2004 Arizona voters modernized that language to instead prohibit voting by anyone who has been “adjudicated an incapacitated person.” So that sounds like a good place to start.
Incapacity, guardianship and conservatorship
In 1974 Arizona adopted an early version of the Uniform Probate Code. That law requires a showing of incapacity before appointment of a guardian. That means that the person “lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.” One wrinkle: the court can appoint a limited guardian for someone who is not found to be an incapacitated person (that can preserve their right to vote).
Conservatorship of the estate, though, does not require a finding of incapacity. In fact, the Arizona statutes are clear: appointment of a conservator is no finding as to the capacity of the person subject to the order. So there’s a quick distinction among several different kinds of competence (or capacity). Having a guardianship demonstrates that the person is legally incompetent, but having a limited guardian, or a conservator, does not.
But who gets to decide that someone needs a guardian (or, for that matter, a limited guardian or a conservator)? In Arizona, Superior Court judges make that decision. But they don’t get to rule in a vacuum. There must be a written report documenting the incapacity. That report must be signed by “a physician, psychologist or registered nurse appointed by the court.” As a practical matter, that means the decision is dependent on medical personnel.
But note: the mere existence of a diagnosis, or even a medical evaluation, does not determine that someone is legally incompetent. Until a Superior Court judge says so, there is no such finding.
What about capacity, or competence, for other purposes?
Lawyers often speak of “testamentary” capacity. We understand that phrase to mean that someone knows who their family members are, what assets they have (at least in a very general sense), and what it means to make a will. Notice what’s missing from that description? There’s no reference to an inability to make or communicate responsible decisions. There’s also no reference to a required medical evaluation.
In fact, as we have described before, a person who has a guardian may still be able to sign a will (at least in Arizona). A person under guardianship may even have the capacity to get married, hire an attorney, or any of a number of other things. In other words, the level of capacity required for different acts varies according to the act in question.
Here’s a (perhaps surprising) point: even someone who is incapable of managing their own finances might be capable of signing a power of attorney to delegate that task to someone else. Similarly, someone who lacks capacity to make medical decisions might still be able to sign a health care power of attorney. That might not really be much of a stretch. After all, most of us lack the capacity to run a major American corporation. But we can still purchase stock in the company and delegate management to people who do have that ability.
So, does “legally incompetent” actually mean anything?
Not much, really. Once a judge rules that a person is incapacitated (as a synonym for incompetent), they still might be able to do all manner of things. It’s not like they have an identifying mark, or a note on their driver’s license.
Actually, that’s not quite right. One thing that surprises many people about guardianship: you lose the right to drive in Arizona. There is a mechanism to allow people under guardianship to drive. But those orders are not very common.
Most importantly, a person with a diagnosis of dementia (or any other condition affecting cognitive function) is not “incompetent” by virtue of that diagnosis. The legal system strives to treat people with dignity and to grant them autonomy. That remains true even after a finding of incapacity — or incompetence.