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Incompetence or incompetency usually means a lack of legal ability to do something, especially to testify or stand trial. Incompetence can be caused by various types of disqualification, inability, or unfitness. Someone who is judged incompetent by means of a formal hearing may have a guardian appointed by the court. Sometimes the sole disqualification is age, in the case of minors. In popular usage, incompetence means a general lack of ability or qualification to do something.

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 notify the alleged incompetent. In some states, members of the alleged incompetent’s family must also be notified. Participation in the hearing is not limited to those who received notice, any interested person may be 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 notice of the hearing.

Incompetence hearings do not follow the typical adversarial plaintiff versus defendant pattern. Instead, their rules and procedures assume that everyone involved wants what is best for the alleged incompetent person. Frequently, courts use 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 probate courtfamily court, or other court of limited jurisdiction.

When a person petitions a court to declare someone incompetent, they may also suggest a candidate to become that person’s guardian, and others may submit alternate candidates. The court is not required to accept any of the suggestions.

Other Meanings

Evidence can also be described as incompetent, meaning that such evidence will be inadmissible. An incompetent witness is a witness who is legally disqualified from giving evidence at trial.

Incompetence can also describe a basis for professional discipline or malpractice suits in some states. For example, Nebraska’s §38-178 describes “Practice of the profession (a) fraudulently, (b) beyond its authorized scope, (c) with gross incompetence or gross negligence, or (d) in a pattern of incompetent or negligent conduct” as one possible ground for discipline in health professions. Maryland Attorney’s Rules of Professional Conduct §301.1 requires that “an attorney shall provide competent representation to a client” with competent representation defined as “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

[Last updated in June of 2023 by the Wex Definitions Team]