Capital with Flag


Esther Wang & Jason Oei, Attorneys at Law Sept. 21, 2021

“Competence is not a clinical, medical, or psychiatric concept. It does not derive from our understanding of health, sickness, treatment, or persons as patients. Rather, it relates to the world of law, to society’s interest in deciding whether an individual should have certain rights (or obligations) relating to person, property, and relationship.” 

California Supreme Court in In re Qawi, 32 Cal4th 1.

A treating physician’s report or letter is only one piece of the capacity puzzle, it is not the final determination of the patient’s legal capacity.  The Legal Perspective is TASK SPECIFIC!

Capacity is ALWAYS Task Specific:

  • “Capacity” is not an abstract, all-or-nothing proposition.

  • Always Task Specific.

  • An elderly person may be incapacitated with regard to one task or activity, while retaining capacity in other areas because the skills and understanding necessary in one situation differs from those required in another.

  • Being competent for one purpose in no way implies competency for another.

  • A person may be simultaneously capable and incapable with respect to different types of decisions.

  • Accordingly, capacity must be determined on a decision-specific basis.

So, what does the person want to do?  

  • Appoint a Conservator

  • Contract, Convey, Appoint an Agency, such as Power of Attorney or Advance Healthcare Directive

  • Make a Medical Decision

  • Create a Will or Trust

  • Marry or Enter a Domestic Partnership

If so, does the person have the mental capacity to do this?  This is the question that is answered under Probate Code Section 810-813:  Due Process in Competence Determinations Act

A person is presumed to have Mental Capacity.

Probate Code Section 810 states:  The Legislature finds and declares the following:

(a) For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions. 

(b) A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.

(c) A judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person's mental functions rather than on a diagnosis of a person's mental or physical disorder.

A mere diagnosis or showing of a mental illness or defect does not necessarily establish incapacity of a person to make a specific decision.  The President’s Commission for the Study of Ethical Problems in Medical and Biomedical and Behavioral Research (1983):  “…there is no necessary correspondence between mental illness and the presence or absence of decisional capacity either in fact or in law.” 

Look for Part II next Tuesday as we finish up the discussion on Capacity is NOT a Medical Concept – Is there a Deficit?