Capacity / Competency

Capacity refers to the physical, mental and cognitive ability of a patient to comprehend benefits and risks of medical care, and decide on recommended health care, or find alternatives and communicate a health care decision to a caregiver. The factors that influence a person’s capacity assessment include:

  • Medical factors such as the presence of medical conditions, psychiatric and emotional issues and side effects of drugs
  • Functional abilities including cognitive, psychological and physical
  • Environmental factors such as barriers to capacity

Certain practitioners are charged by law to determine the capacity of an individual. A person who lacks clinical capacity due to reasons such as delirium, coma, intoxication or severe depression, consent to treatment can be obtained from an agent or proxy authorized for health care or other legally designated surrogate. However, urgent or emergency cases in the absence of such surrogates can bypass consent under the doctrine of presumed consent.

Competency, also called legal capacity, is ones capacity to make medical decisions, which is determined by the court and not by a health care provider. In general, you are considered legally competent if you are above the age of 18 or a minor who has a degree of emancipation, married or work for the armed forces. Factors that determine legal incapacity include:

  • Intellectually disabled, suffering from dementia or a mental disorder, or a chronic abuser of drugs
  • Lack cognitive ability to receive, assess, make or communicate decisions
  • Does not have sound physical health and cannot take care of oneself without protective intervention

When found incompetent due to any of these factors, the court assigns a conservator or guardian to make decisions.

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