Legally Incapacitated vs. Legally Incompetent

By Cindy DeRuyter, J.D.

Legally Incapacitated vs. Legally Incompetent

By Cindy DeRuyter, J.D.

Sometimes, the terms "incapacitated" and "incompetent" are used interchangeably. However, there are legal distinctions between the two. If someone is legally incapacitated, they cannot care for themselves or manage their own financial affairs. When someone is found legally incompetent, they are unfit or unqualified to do something. As it relates to legal proceedings, such a defendant cannot understand the nature of the proceedings nor can they comprehend the potential consequences associated with the charges.

Person in wheelchair petting a yellow Labrador retriever while holding its leash

Understanding Legal Incapacity

If someone close to you is legally incapacitated, it generally means they cannot manage their own financial affairs. They may also need someone to handle personal affairs too, such as making medical appointments and health care decisions and helping with activities of daily living. This is sometimes a permanent condition, but it can also be temporary, stemming from illness or drug use. People in this category are not capable of making rational decisions or acting responsibly.

It also means that they cannot enter into contracts, create wills or trusts, or sign documents. That's because an incapacitated person does not fully understand the nature of what they are signing. Someone who is legally incompetent lacks the ability to do something specific. Courts may declare this in situations where their abilities come into question during legal matters. For example, in criminal law, a defendant in a court case may be evaluated and the court may hold competency hearings to determine whether the defendant is fit to stand trial.

Legal Incapacity, Incompetence, and Estate Planning

If a loved one is incapacitated or incompetent, you may need to pursue guardianship and conservatorship for them through the court in the state where they reside. Guardianship gives someone else legal authority to make personal decisions on another's behalf, while conservatorship gives someone authority to manage their finances. In some states, the term guardianship covers both of these functions.

It is possible to plan for your own future incapacity. You can create legal documents now that your loved ones can use in the future if the need arises. Advanced planning with healthcare directives, powers of attorney, and revocable trusts can help ease your loved ones' stress during this time.

When you create a healthcare directive, you nominate someone as your agent to speak on your behalf and make decisions commonly made by legal guardians if your health declines. Similarly, you can create a statutory power of attorney for finances, authorizing a trusted family member or friend to manage your financial affairs if you become incapacitated.

If you decide to create and fund a revocable trust, your designated successor trustee will manage the trust assets on your behalf. Using any of these tools to plan ahead puts you in charge, giving you the opportunity to identify who you would want making important decisions if you are alive but unable to manage your personal or financial affairs.

To learn more and to create your own estate planning documents, you should speak to others who might be involved in those decisions. If you want to designate an agent to act on your behalf, speak to that person to ensure they will accept the responsibilities that come with it. Or if you have a family member who is currently incapacitated or incompetent, know your rights.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.