Difficulties in Talking About Incompetence and Incapacity, Part I

August 25, 2014 § Leave a comment

[This is Part I of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]


“In defining what must be shown to establish incompetence, ‘courts… have recognized that a firm definition of the grounds named within a statute is difficult to enunciate. Rather, the courts generally have prescribed the degree of acumen necessary to manage property, but left that determination to a factual analysis of the particular case…. ”  Harvey v. Meador, 459 So.2d 288, 292 (Miss. 1984).


The terms “incompetence” and “incapacity” must be understood in representing elderly clients, but yet their meaning seems just out of reach, or, as the Court stated in Harvey, “difficult to enunciate.”

The terms do not mean the same thing, as a legal matter, in different contexts. It is clear, for instance, that a person can be incompetent, justifying the appointment of a conservator, but yet be perfectly competent to make a will. See Lee v. Lee, 357 So.2d 713 (Miss. 1976) (so holding). But yet a person subject to a conservatorship, who can make a will during lucid intervals, cannot make a deed without court approval, whether lucid or not. In re Estate of Thomas, 853 So. 2d 134, 135 (Miss. Ct. App. 2003); see Miss. Code Ann. § 93-13-261 (statutory limitation on conveyance powers of person subject of a conservatorship).

These problems with definitions are exacerbated by the fact that legal professionals must also work with health care and social work professionals in providing services for these clients. It is a commonplace that doctors and lawyers have problems communicating about incapacity in the form of mental illness. The medical profession does not use the statutory terminology lawyers are required to use and often does not think in comparable terms. This paper will attempt to pin down, to the extent possible, the language lawyers are required to use in considering questions of competency and capacity, in hopes of making possible a discussion of how best to approach these issues when they arise with elderly clients.

These issues arise in a number of contexts in representing elderly clients, beginning with the routine memory issues due to aging through the effects of Alzheimer’s disease or dementia on memory and function, and include developmental disabilities that an older client has dealt with since childhood.

Competence / Incompetence and Incapacity

Black’s Law Dictionary’s negative definition is clearest

Incompetency. Lack of ability, legal qualification, or fitness to discharge the required duty. A relative term which may be employed as meaning disqualification, inability or incapacity and it can refer to lack of legal qualifications or fitness to discharge the required duty and to show want of physical or intellectual or moral fitness.

The key word in this definition is the word “relative.” Incompetency is best thought of relevant to the particular kind of incompetence: As noted, a person can be incompetent to manage their own business affairs but perfectly competent to make a will. Incompetence is used in the law in a lot of contexts, some having nothing to do with the kind of competence discussed here (for instance, the question of whether a witness is competent).

One particular way that the kind of incompetence is critical is that the test varies from very stringent (that is, requiring much more serious proof) to less depending on the legal context. The criminal context involves probably the most difficult burden to show incompetence in the area of competence to stand trial or the level of incompetence required for the insanity defense. This paper is limited to the civil context and will focus on four different versions of incompetence: incapacity at the level of non compos mentis (Latin meaning, literally, “not of sound mind”) involved in appointment of a guardian, “management competency” involved in appointment of a conservator, competence to make a will, and competence to make a power of attorney.

Another way the question of competence is “relative” is the different ways the word is used by different professionals and by the lay public.

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You are currently reading Difficulties in Talking About Incompetence and Incapacity, Part I at The Better Chancery Practice Blog.


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