Incompetence and incapacity: They sound similar, but are there differences? And when should each term be used? In Pennsylvania, how they’re used has changed over the years. At one point, “incompetent” wasn’t used legally, but it returned to legal use in 2007. Here’s what you need to know.
In Pennsylvania, incompetence became a standard applied when close family or friends wanted to be able to make certain medical decisions on behalf of someone. For the court to approve, a doctor needed to examine the person and declare them incompetent for medical purposes. That means the doctor didn’t believe the person had the mental capacity to understand what they needed to in order to provide consent for medical treatments. It’s only used in cases where medical decisions are required, but no one was appointed medical power of attorney to step in. This isn’t the end of the line, though; a healthcare representative or even the person diagnosed as incompetent can have the assessment overturned.
Incapacity is similar to incompetence in that it describes a person who can no longer take care of themselves, their health and safety, and daily life and is unable to enter into contractual arrangements knowledgeably. Whereas incompetent is used in medical situations, incapacity is used only in legal matters. For someone to be deemed legally incapacitated, a judge must conduct a hearing in which evidence, medical and otherwise, is presented, and the judge determines whether or not the evidence proves incapacitation. A judgment of incapacity cannot be overturned and can be used in both medical and financial situations.
What Estate Planning Can Do to Help
These types of legal situations arise when someone hasn’t prepared for the future of their estate. Planning and setting up various trusts and powers of attorney can prevent legal hearings and other stressful outcomes. Talk to an experienced estate planning and elder law lawyer about what steps to take.
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If you or someone you know needs assistance with estate planning or elder law, call me at 610-718-6368.