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The lack of ability, knowledge, legal qualification, or fitness to discharge a required duty or professional obligation.

The term incompetency has several meanings in the law. When it is used to describe the mental condition of a person subject to legal proceedings, it means the person is neither able to comprehend the nature and consequences of the proceedings nor adequately able to help an attorney with his defense. When it is used to describe the legal qualification of a person, it means the person does not have the legal capacity to enter a contract. When it is employed to describe a professional duty or obligation, it means that the person has demonstrated a lack of ability to perform professional functions.

Mental Incompetency

A person who is diagnosed as being mentally ill, senile, or suffering from some other debility that prevents them from managing his own affairs may be declared mentally incompetent by a court of law. When a person is judged to be incompetent, a guardian is appointed to handle the person's property and personal affairs.

The legal procedure for declaring a person incompetent consists of three steps: (1) a motion for a competency hearing, (2) a psychiatric or psychological evaluation, and (3) a competency hearing. Probate courts usually handle competency proceedings, which guarantee the allegedly incompetent person due process of law.

In criminal law a defendant's mental competency may be questioned out of concern for the defendant's welfare or for strategic legal reasons. The defense may request a competency hearing so that it can gather information to use in plea bargaining, to mitigate a sentence, or to prepare for a potential insanity defense. The prosecution may raise the issue as a preventive measure or to detain the defendant so that a weak case can be built into a stronger one.

A motion for a competency hearing must be made before sentencing takes place. In federal court a motion for a hearing will be granted "if there is a reasonable cause to believe that the defendant may be suffering from a mental disease or defect rendering him mentally incompetent" (18 U.S.C.A. § 4241 (a)). A psychiatric or psychological evaluation is then conducted, and a hearing is held on the matter. If the court finds that the defendant is incompetent, the defendant will be hospitalized for a reasonable period of time, usually no more than four months. The goal is to determine whether the defendant's competence can be restored.

This type of mental commitment is authorized by the U.S. Supreme Court only for defendants who "probably soon will be able to stand trial" (Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 [1972]). The possibility that a defendant committed a serious crime does not warrant an extended commitment period, because that would violate the defendant's due process rights.

At the end of a four-month commitment, if it appears that the defendant's competence can be restored but more time is needed to do so, the defendant may be hospitalized for an additional 30 days to 18 months. The length of stay varies by state. If a hospital director certifies that the defendant's competence has been restored, the court holds another hearing. If the court agrees the defendant is competent, they are released and a criminal trial date is set. Such a competency ruling cannot be used as evidence against the defendant if they later pleads insanity as a defense in the criminal trial. (An insanity defense refers to the defendant's inability to know or appreciate right from wrong at the time of the alleged crime.)

The Jackson ruling also specified that "treatment must stop if there is no substantial probability that the defendant will regain trial competence in the near future." If that decision is reached, the defendant can continue to be detained only if they are declared permanently incompetent in a civil commitment proceeding.

The development of powerful drugs has given the government the opportunity to medicate mentally incompetent defendants to the point whre they are competent to stand trial. By 2003, the federal government was medicating hundreds of defendants each year but a small number objected to medication. The Supreme Court, in Sell v. United States 539 U.S. ___, 123 S. Ct., 2174, 156 L. Ed. 2d 197 (2003), issued a major setback to prosecutors, when it placed strict guidelines on medicating defendants accused of less serious, nonviolent crimes.

Legal Incapacity

civil law requires a person to be legally competent in order to enter a contract, sign a will, or make some other type of binding legal commitment. A person may be judged incompetent by virtue of age or mental condition.

In contract law a person who agrees to a transaction becomes liable for duties under the contract unless they are legally incompetent. A person under the age of 18 or 21 (depending on the jurisdiction) is not bound by the legal duty to perform the terms of a contract he signed and is not liable for breach of contract. Public policy deems it desirable to protect an immature person from liability for contracts that he or she is too inexperienced to negotiate.

If a party does not comprehend the nature and consequences of the contract when it is formed, they are regarded as having mental incapacity. A distinction must be made between persons who have been adjudicated incompetent by a court and had a guardian appointed, and persons who are mentally incompetent but have not been so adjudicated. A person who has been declared incompetent in a court proceeding lacks the legal capacity to enter into a contract with another. Such a person is unable to consent to a contract, since the court has determined that he does not understand the obligations and effects of a contract. A contract made by such a person is void and without any legal effect. If there has been no adjudication of mental incompetency, a contract made by a mentally incapacitated individual is voidable by them. This means that the person can legally declare the contract void, making it unenforceable. However, a voidable contract can be ratified by the incompetent person if the person recovers the capacity to contract.

Contract law also holds that a contract made by an intoxicated person is voidable, as the person was incompetent at the time the contract was formed.

A marriage contract may be annulled if one of the parties was legally incompetent. Grounds for incompetency include age (under the age of majority), mental incompetence such as insanity, and a preexisting marriage.

A person who executes a will must be legally competent. The traditional recital in a will states that the testator (the maker of the will) is of "sound mind." This language attempts to establish the competency of the testator, but the issue may be challenged when the will is probated.

Professional Obligation

Lawyers, doctors, teachers, and other persons who belong to a profession are bound either by professional codes of conduct or by contracts that contain standards of conduct. A professional person who fails to meet the duties required of that profession may be judged incompetent. Such a ruling by a court, a professional disciplinary board, or an employer may result in professional discipline, including loss of a license to practice, demotion, or termination of employment.

further readings

Grisso, Thomas, with Randy Borum, et al. 2003. Evaluating Competencies: Forensic Assessments and Instruments. 2d ed. New York: Kluwer Academic/Plenum.

Hubbard, Karen L., Patricia A. Zapf, and Kathleen A. Ronan. 2003."Competency Restoration: An Examination of the Differences Between Defendants Predicted Restorable and Not Restorable to Competency." Law and Human Behavior 27 (April): 127–39.

Moriarty, Jane Campbell, ed. 2001. The Role of Mental Illness in Criminal Trials: Insanity & Mental Incompetence. New York: Routledge.

Scott, Charles L. 2003. "Commentary: A Road Map for Research in Restoration of Competency to Stand Trial." Journal of the American Academy of Psychiatry and the Law 31 (March): 36–43.

Tewksbury, Jane E., chair, et al. 2001. Going to Trial: Criminal Defendants & Mental Illness: Competency and Criminal Responsibility. Boston, Mass.: Massachusetts Continuing Legal Education.