Competency vs. Capacity

Though you may have heard these two terms being used interchangeably, they have distinct meanings—and they have specific applications. Capacity and competency are separate, but they are also determined by different people and used for unique purposes. 


The terms get misunderstood and switched because “competency” is sometimes referred to as “legal capacity.” To help you understand the term, remember the word “legal.” The reason is that competency is a legal status determined by a judge. 

Competency applies to guardianship and conservatorship hearings. But there are several other reasons why a judge would have to consider this. The overall purpose of competency is to conclude that someone can participate in a legal proceeding.  

In criminal law, competency may be assessed to know whether the defendant can stand a trial. For estate planning, someone must possess the legal capacity to create a will and sign it.

Though judges make the ultimate decision, they will still hear and read opinions from doctors and psychiatrists to aid their ruling.


Capacity is the opposite: it is determined by a physician rather than a judge. When a doctor makes a decision regarding someone’s capacity, they assess when that person can understand something (e.g., a decision regarding treatment or health care). 

Someone who can make healthcare decisions can make an informed decision about a course of treatment after proper consideration. The capacity to agree to a medical decision is based on informed consent.

Does the person have the ability to understand the impact and consequences of their actions? Before any medical procedure occurs, a doctor explains it to the patient. Depending on what it is, the physician explains its risks. This could be a minor side effect of prescribed medications or the inherent danger of undergoing surgery.

Along with the risks and benefits, a patient must understand the other options. These are dependent on the situation. Regardless, a patient has to have the capacity to make these decisions on their behalf.

Kevin Tharpe, P.C.

In addition to these two terms, it is essential to note varying capacity levels. For instance, there may be a heightened level to sign a contract, but a lower one regarding someone signing a will.

You will is a means to convey your last wishes, and it can designate where your assets will go and to whom. Don’t allow someone to challenge it after you pass away by claiming you did not have the mental capacity to do so. 

At J. Kevin Tharpe, we have the experience and ability to draft comprehensive estate plans that can avoid probate. Depending on your circumstances, we will recommend the best tools for you and your family.

The following two tabs change content below.

Kevin Tharpe

With 25 years of experience, Kevin understands how estate planning, special needs planning, and government benefits programs work together. This is a crucial element of a thorough plan. He explains your eligibility for benefits programs and ensures that you do not make costly mistakes that may disqualify you or deplete your assets.

Latest posts by Kevin Tharpe (see all)