Incompetence

Definition

1.  Lack of legal ability to do something, especially to testify or stand trial.  Also known as "incompetency."  May be caused by various types of disqualification, inability, or unfitness.  Someone who is judged incompetent by means of a formal hearing may have a [[wex:guardian]] appointed by the court.  Sometimes the sole disqualification is age; see minority.

2.  In popular usage, a general lack of ability or qualification to do something.

Procedure

In some jurisdictions, any “interested” person may petition for a court to declare someone incompetent. Other jurisdictions apply tighter restrictions on the petitions.  Before the hearing, the court or petitioner must [[wex:notice|notify]] the alleged incompetent.  In some states, members of the alleged incompetent’s family must also be [[wex:notice|notified]].  Participation in the hearing is not limited to those who received [[wex:notice]].  Instead, any interested person may get involved.  For example, if a government agency petitioned a court to declare an elderly woman incompetent, the woman’s children could come before the court to argue that their mother was competent, even if the children did not receive formal [[wex:notice]] of the hearing.

Incompetence hearings do not follow the typical adversarial [[wex:plaintiff|plaintiff]] v. [[wex:defendant]] pattern.  Instead, their rules and procedures assume that everyone involved wants what is best for the alleged incompetent.  Frequently, courts use [[wex:guardian_ad_litem|guardians ad litem]] or other court-appointed investigators to assist them in determining whether a person is incompetent.  Incompetence hearings are usually conducted by a [[wex:probate_court|probate court]], [[wex:family_court|family court]], or other court of limited [[wex:jurisdiction]].

When a person petitions a court to declare someone incompetent, they may also suggest a candidate to become that person’s guardian.  Others may submit alternate candidates.  The court is not required to accept anyone’s suggestion.  See [[wex:guardian|Guardian]].

Contested incompetency hearings can be very difficult and expensive.  See [[wex:guardian#Difficulties|Guardian]].