Historically the words “incompetent” and “incapacity” have been used interchangeably in Pennsylvania. From a legal perspective, the two words have very different meanings.

What’s in a Word?

Until 1992 someone who lacked the ability to make decisions on their own behalf and needed a legal guardian was called an incompetent under the Probates, Estates and Fiduciary Code, which is the law that addresses these issues in Pennsylvania. In 1992, as part of a sweeping overhaul of that section, the Code was updated to use the term “incapacitated” to describe a person who was in need of a legal guardian. Other changes were made to the Code to provide for more flexibility in drafting orders and clarifying powers of a guardian. But the term “incompetent” was no longer used for that purpose.

In 2007 in another change to the Code, this time to the section on healthcare decision making, the term “incompetent” was reintroduced. Under the new Healthcare Representative provisions (Act 169), the Commonwealth allowed close family or friends to make certain medical decisions even if not named as agent in a written healthcare power of attorney. For this to be active the physician needed to deem the individual “incompetent” for purposes of medical decision making (meaning they lack the ability to provide consent for medical decision making).

Context Is Everything

This new law created confusion because these two terms are, in fact, used differently in different contexts. “Incompetent” for medical decision making is a medical determination and can only be used in the context of medical decision making when there is no appointed legal agent under a written power of attorney. And just as importantly, even though a doctor can deem someone “incompetent” to make medical decisions, the decisions made by their Healthcare Representative can be “countermanded” or undone by the medically incompetent individual. So even though the doctor says you are unable to give consent, if the individual protests, the enumerated Healthcare Representatives, as listed in the Act, may not override the wishes of the individual. This can be confusing.

“Incapacity” is solely a legal determination and can ONLY be made by a judge after a hearing in which the judge hears medical and other evidence to determine capacity. A judicial determination of incapacity cannot be overruled or revoked by the individual and can apply to medical and other (financial) decisions. Further, a judge’s determination of incapacity may be plenary (all ability to make decisions is granted to the guardian) or limited (certain enumerated authority is granted to the guardian or retained by the incapacitated person). So a judicial determination of incapacity is more powerful, comprehensive, and enforceable than the medical determination of incompetence.

So it is important to understand the difference in meaning for the two terms. And it is just as important to know then to seek the appointment of a legal guardian to protect the health and safety of an impaired adult when the determination of incompetence by a doctor may not be enough to protect that individual from poor decision making.

For more information about how residents of Chester County, PA, can benefit from the services of an experienced estate planning attorney, and how Slutsky Elder Law can help you with Medicaid applications in Montgomery County and the surrounding areas, contact us today!

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