Abstract
In Western jurisprudence, the concept of capacity is a legal presumption. It rests upon the assumption that each of us, at adulthood, is best able to decide what is in our best interest, and that we ought to be left alone to pursue our own choices (Sabatino and Basinger 2000). Incapacity is a term that defines when a state may take actions to shatter this presumption and limit the individual’s right to make decisions about his or her person or property based on disability. Guardianship or conservatorship is the process in which this determination is normally made. Conceptually, incapacity may be seen as a legal fiction. This means that it is a construct treated as a fact, whether or not it is really so, because it is recognized as having utility. Here, we are referring to legal incapacity, and not clinical or de facto incapacity.
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Notes
- 1.
Traditionally, in the U.S., the word “incompetency” was used for legal determinations and the word “incapacity” for clinical determinations—which in turn could be primary evidence for any legal determinations. However, recently most state laws in the U.S. have discarded the term “incompetency” in favor of “incapacity” it avoids the “all or nothing” connotation of “incompetency” as well as other historical baggage of the term.
- 2.
Only three states still include age in their definition of disabling condition as of 2010: Ala. Stat. Sect. 26-2A-20(8) (West 2009); Miss. Code Ann Sect. 93-13-251 (West 2009); S.C. Code Sect. 62-5-101 (2009). [CHARLIE—I checked these three statutes and this is still correct.]
- 3.
See, e.g., Idaho Code Sect. 15-5-101(a)(1) (1999); Minn. Stat. Ann. Sect. 525.54, subd. 2 (West 1998); N.H. Rev. Stat. Ann. Sect. 464-A:2(XI) (1999).
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Sabatino, C.P., Wood, E. (2012). The Conceptualization of Legal Capacity of Older Persons in Western Law. In: Doron, I., Soden, A. (eds) Beyond Elder Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-25972-2_3
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