Competence

A legal designation that recognizes that persons beyond a certain age generally have the cognitive ability to negotiate certain legal tasks, such as entering into a contract or making a will.

In most states, persons are declared competent at age 18, at which time they can vote, sign binding contracts, and otherwise make legally binding decisions about their lives. The concept of generic competence reflects a societal determination to include or exclude certain persons from full participation and therefore does not reflect a focused assessment of the abilities or disabilities of an individual.

The concept of competence, however, raises the possibility of incompetence(ie, the judgment that a lack of certain abilities limits a person's legal rights). Incompetence can only be decided by a court of law.

Before the 1990s, a person could be deemed incompetent by virtue of belonging to a particular category (eg, the elderly, the mentally ill, the physically addicted). However, most states have since revised the statutes that determine incompetency and now require a functional assessment of the person's abilities and disabilities. This focused review becomes the basis from which a court crafts orders tailored to meet the person's functional deficits and demonstrated needs.

All adult patients who are not mentally retarded or who have not been declared incompetent by a court have the same legal rights. Elderly patients, however, are at greater risk of having their legal rights abrogated because they are more likely to be isolated, poor, demented or confused, or institutionalized. They may be less able to advocate for their beliefs and desires and tend to have a smaller support network. Health care practitioners, therefore, need to identify and support the rights and interests of elderly patients and guard against their being accidentally or deliberately disempowered.

When the court declares a person incompetent or functionally unable to act in certain areas, it appoints a guardian, who is responsible for making some legally binding decisions for the incompetent person, or ward. The areas in which the court has found functional incompetence define the powers given to the guardian. The elderly may be in jeopardy of inappropriate attempts to appoint a guardian because a few states still stipulate that old age itself is an acceptable ground for instituting such actions and for a legal finding of diminished ability.