incompetent

Incompetence, or incompetency, is a lack of legal ability, or to be deemed unqualified to do something or incapable of taking responsibility. Incompetence can be caused by various types of disqualification, inability, or unfitness.

Here are examples of incompetency in different legal contexts:

Civil Procedure

  • Legal Representative: Incompetent plaintiffs or defendants must have a representative to “sue or defend on behalf of” themselves, including “general guardian, committee, conservator, or like fiduciary.” If they do not have representatives, the court must “appoint a guardian ad litem or issue another appropriate order to protect” those who are deemed incompetent. See FRCP Rule 17(c).
  • Diversity: Under 28 U.S.C. § 1332(c)(2), diversity cannot be created by appointing representatives from different states from those who are deemed incompetent, as the legal representatives must be residents of the same jurisdiction.
  • Default judgment: If defendants fail to plead or defend, plaintiffs can request an entry of default. The clerk would typically enter the default against defendants. However, a default judgment cannot be entered against a person deemed incompetent under FRCP 55. A default judgment may be entered only when the incompetent party is represented by “a guardian, conservator, or fiduciary” who has appeared. 

Contract Law

  • Termination of Offer: The offer can be terminated because of the incapacity of a party prior to acceptance, which means that the offeree loses the power to accept if the offeree or the offeror is deprived of legal capacity to enter the contract. However, there are exceptions if it’s an option contract or a partly performed unilateral contract.
  • Defense to Contract: Incapacity is a defense of contract. A party deemed incompetent lacks the capacity to fully understand the contract. A contract with someone deemed incompetent is voidable unless the contract involves a person who has legal guardianship over them. If the incompetent person later gains capacity, they can ratify the contract.

Evidence

Property Law

  • Transfer by deed: The delivery of a deed represents that the grantor intends to be immediately bound. Delivery usually is complete once the grantor places the deed in the grantee’s hand. While delivery through an escrow agent is also allowed. The grantor gives instructions to deliver the deed to the grantee; and the instruction includes certain conditions. Once these conditions are met, the title will automatically pass from the escrow agent to the grantee. Even if the grantor becomes incompetent before the conditions are met, the title will still pass.

Tort Law

  • Standard of care of negligence: Professionals with special skills who provide special services to the public have a special standard of care (based on a custom or a national standard) when justifying their negligence. For specialists, they have a duty to disclose the risk of treatment. If they fail, they must take responsibility. One defense of disclosing is that the patient/client is mentally incompetent.
  • Lawyers’ professional responsibility: 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 reviewed in September of 2026 by the Wex Definitions Team]

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