Competence (law)

In United States and Canadian law, competence concerns the mental capacity of an individual to participate in legal proceedings or transactions, and the mental condition a person must have to be responsible for his or her decisions or acts. Competence is an attribute that is decision specific. Depending on various factors which typically revolve around mental function integrity, an individual may or may not be competent to make a particular medical decision, a particular contractual agreement, to execute an effective deed to real property, or to execute a will having certain terms.

Depending on the state, a guardian or conservator may be appointed by a court for a person who satisfies the state's tests for general incompetence, and the guardian or conservator exercises the incompetent's rights for the incompetent. Defendants who do not possess sufficient "competence" are usually excluded from criminal prosecution, while witnesses found not to possess requisite competence cannot testify. The English equivalent is fitness to plead.

United States

The word incompetent is used to describe persons who should not undergo certain judicial processes, and also for those who lack mental capacity to make contracts, handle their financial and other personal matters such as consenting to medical treatment, etc. and need a legal guardian to handle their affairs.

Competence to stand trial

In United States law, the right to not be prosecuted while one is incompetent to stand trial has been ruled by the United States Supreme Court to be guaranteed under the due process clause. If the court determines that a defendant's mental condition makes him unable to understand the proceedings, or that he is unable to help in his defense, he is found incompetent. The competency evaluation, as determined in Dusky v. United States, is whether the accused "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understandingand whether he has a rational as well as factual understanding of the proceedings against him." Being determined incompetent is substantially different from undertaking an insanity defense; competence regards the defendant's state of mind at the time of the trial, while insanity regards his state of mind at the time of the crime. In New York a hearing on competence to stand trial may be referred to as a "730 exam", after the law that governs the conduct of the exam, New York CPL Sec. 730.[1]

In 2006, the United States Court of Appeals for the Tenth Circuit considered the legal standards for determining competence to stand trial and to waive counsel using the standards of objective unreasonableness under the Antiterrorism and Effective Death Penalty Act.[2]

A ruling of incompetence may later be reversed. A defendant may recover from a mental illness or disability, and a court may require a defendant to undergo treatment in an effort to render the defendant competent to stand trial.[3] For example, in 1989, Kenneth L. Curtis of Stratford, Connecticut was found mentally incompetent to stand trial following the murder of his estranged girlfriend. But years later, as he had attended college and received good grades, this ruling was reversed, and he was ordered to stand trial.

Competence to be executed

An inmate on death row has a right to be evaluated for competency by a psychologist to determine if sentence can be carried out. This is a result of Ford v. Wainwright, a case filed by a Florida inmate on death row who took his case to the United States Supreme Court, declaring he was not competent to be executed. The court ruled in his favor, stating that a forensic professional must make that competency evaluation and, if the inmate is found incompetent, must provide treatment to aid in his gaining competency so the execution can take place.[4]

Competence to enter into a contract

Generally, in the United States, a person has the capacity or competence to make the decision to enter into a contract if the person has the ability to understand and appreciate, to the extent relevant, all of the following: (a) The rights, duties, and responsibilities created by, or affected by the decision. (b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision. (c) The significant risks, benefits, and reasonable alternatives involved in the decision. See, e.g., California Probate Code §812.[5]

Competence and Native Americans

Competency was used to determine whether individual Native Americans could use land that was allotted to them from the General Allotment Act (GAA) also known as the Dawes Act. The practice was used after in 1906 with the passing of the Burk Act, also known as the forced patenting act. This Act further amended the GAA to give the Secretary of the Interior the power to issue allotees a patent in fee simple to people classified ‘competent and capable.’ The criteria for this determination is unclear but meant that allotees deemed ‘competent’ by the Secretary of the Interior would have their land taken out of trust status, subject to taxation, and could be sold by the allottee.

The Act of June 25, 1910 further amends the GAA to give the Secretary of the Interior the power to sell the land of deceased allottees or issue patent and fee to legal heirs. This decision is based on a determination made by the Secretary of Interior whether the legal heirs are ‘competent’ or ‘incompetent’ to manage their own affairs.

Competency case law

Adjudicative competence has been developed through a body of common law in the United States. The landmark cases are the following:[6]

United Kingdom

In the laws of England and Wales, Scotland, and Ireland, the term "fitness to plead" is used, as in designating a person "unfit to plead". The concept is identical to "competence", although detailed law differs.

See also


  1. "People v Hasenflue, 48 AD3d 888 (2008)". Google Scholar. Google.
  2. "Standards for Determination of Competence". Journal of the American Academy of Psychiatry and the Law. 2007. Retrieved 2007-10-19.
  3. Larson, Aaron. "What is Competence to Stand Trial". ExpertLaw. Retrieved 7 May 2017.
  4. "Ford v. Wainwright 477 U.S. 399". Cornell Law School. Retrieved 2007-10-03.
  5. "California Probate Code Part 17. Legal Mental Capacity". California Legislature. Retrieved 2017-04-16.
  6. "AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial – Mossman et al. 35 (4): S3 – Journal of the American Academy of Psychiatry and the Law Online". Retrieved 2008-02-21. Cite journal requires |journal= (help)
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