Q: My family member has been in ill health, and is having difficulty managing her own finances, making decisions, and running her household. We consulted a family law attorney, and he advised us to have our family member undergo a psychological competency evaluation. What does this entail? What happens if our family member is judged incompetent?
A: Competency, in civil legal terminology, refers to the capacity to make independent decisions and conduct legal and financial transactions on one's own behalf. Adults are generally presumed competent to handle their own affairs, but this presumption may be set aside by law if there is compelling evidence to the contrary. Both the state and private parties, usually family members, may raise the issue.
If the court declares a person to be incompetent, that person is usually appointed a guardian, who is legally empowered to make decisions regarding another individual's person and property. Again, this is often a family member, but in some cases the court itself becomes the guardian, and then the person is declared a ward of the court.
The role of the psychological expert in a determination of incompetency is to conduct an evaluation of the individual's mental function via a thorough clinical examination, review of records, interview of family members or other collaterals, and the administration of a number of psychological and neuropsychological tests.
Mental function skills relevant to competency include attention, concentration, reality orientation, memory, reasoning, judgment, emotional state, and especially knowledge and appreciation of the nature and purposes of the decisions that are the subject of the competency action (e.g. manage finances) and the ability to carry them out (mathematical ability or knowledge of banking rules, investing, etc.).
The law's presumptions of competency of its adult citizens means that the burden of proof is generally on the party challenging the subject's competency, and what defines "competency" often differs from case to case. For example, the type or degree of mental impairment that would render an individual incompetent to make a will or manage finances, might not be sufficient to deprive them of their right to marry or consent to medical treatment.
Another complication is the nature of the clinical syndrome that produces the incompetency, which falls into three major classes. First are relatively stable conditions such as severe mental retardation or autism which present lifelong disability, and for which the need for permanent guardianship is evident. Second are slowly progressive syndromes, such as schizophrenia or Alzheimer's disease, where the point at which impairment worsens to a level warranting incompetency may hardly be clear-cut.
Third are abrupt-onset impairments in mental functioning in a previously healthy individual, such as from a stroke, traumatic brain injury, or bipolar manic episode. In addition to the issue of impairment level, these are syndromes that may actually show improvement over time, so a person incompetent at one point may well meet formal criteria for competency a year later.
The problem is that, in most jurisdictions, guardianships are plenary, that is, they don't distinguish between different types of competencies (medical, marital, financial), and they don't include time limits. A person that has recovered from a brain injury, for example, may now have the burden of proof of demonstrating restoration of competency and setting aside the guardianship. Guardians may not always be willing to relinquish their control.
For their part, guardians should consider that they are obliged to be responsible and legally liable for the actions of their ward. To reduce such risks, some guardians may restrict and control their wards even more than necessary. When difficulties in this area arise, parties should seek both legal and psychological counseling.
© 2005, Laurence Miller, PhD. All rights reserved. This article may not be reproduced in whole or in part without the express written consent of Dr. Miller.