Competency vs. Incapacity: Understanding Key Differences for Elderly Loved Ones

As our loved ones age, questions about their decision-making abilities can arise. Understanding the terms “competency” and “incapacity” is vital for ensuring their well-being and respecting their autonomy.

Important Note: These legal terms define an individual’s decision-making ability. Competency and incapacity are often blurred; a person may be deemed incompetent or incapacitated in certain situations.

Competency Defined

Competency (also called capacity) refers to an individual’s ability to make reasonable decisions about their own affairs or those of their family. In general, a person is considered competent until proven otherwise. Actions by themselves, their loved ones, or their belongings that are deemed to pose a risk may trigger an evaluation.

Competency often arises as a concern when discussing finances, healthcare directives, or legal decisions. If someone is believed incompetent, the person or organization making the claim must provide evidence. For example, if you think, “Dad shouldn’t be using credit cards anymore,” you’ll need supporting proof for your case, as outlined in Nevada Revised Statute Chapter 178.

If you have concerns about an elderly loved one’s competency, seeking legal advice is important. An experienced guardianship attorney can help clarify the process, assess the specific circumstances, and guide you in taking the appropriate steps to ensure your loved one’s safety and well-being.

Factors in Assessing Competency

  • Cognitive Abilities: Does the individual have sufficient reasoning skills and memory?
  • Understanding Consequences: Can they grasp the potential impact of their decisions?
  • Healthcare Decisions: Do they understand diagnoses, treatment options, and the ability to follow medical instructions?
  • Vital Functions: Can they perform essential daily tasks such as preparing meals, managing finances, or seeking help when needed?


Note: Competency may be temporary or permanent. An individual might be deemed incompetent in one specific area (like handling finances) while remaining competent to make healthcare decisions. These determinations are usually made through a court process involving legal and medical professionals.

After declaring incompetency, the court transfers decision-making authority to a guardian. This may be a chosen individual, an objecting party, or a professional guardian.

Incapacity Defined

Incapacity implies that a person may lack the mental ability to comprehend important choices and their consequences. In contrast to competency, which is assumed, incapacity must be clearly demonstrated. This often occurs after a concerning event, such as a senior repeatedly falling for financial scams or showing signs of severe cognitive decline.

The Path to Guardianship

When incapacity is suspected, a formal assessment may be conducted. If a court deems the person incapacitated, decision-making authority is transferred to a guardian. This could be a family member, a trusted friend, or a professional guardian appointed by the court. The guardian is legally responsible for protecting the individual’s best interests.

Michaelson Law: Protecting Nevada’s Elderly for 32+ Years

Navigating guardianship laws and options can be complex. At Michaelson Law, our attorneys have extensive experience in all areas of guardianship. Contact us today to understand your options and ensure the best possible care for your loved ones.

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