Mental Capacity and Competency

Competency is a legal term, defined as: "duly qualified: having sufficient capacity, ability, or authority" [Black's Law Dictionary].

Mental capacity is a functional term that may be defined as: the "mental (or cognitive) ability to understand the nature and effects of one's acts."

There are many ways to assess mental capacity. Three common models are the philosophical/legal, medical, and functional models. Each has significant benefits and limitations. PARADISE-2, a behavior-based protocol, maximizes the strengths of previous models, while minimizing their limitations. Designed for potential litigation settings, PARADISE-2 is used by attorneys, law enforcement, social service personnel, physicians, and nurses in many parts of the Western Hemisphere. PARADISE-2 was used by the United Nation's International Criminal Tribunal for the former Yugoslavia ("ICTY") in the war-crimes trial of Gen. Pavle Strugar - the first trial of its kind since the Nuremberg Trials. Due, in part, to PARADISE-2, the Tribunal created new international legal precedent affecting all future war-crime tribunals.

Click here for more information about the PARADISE-2 protocol.

Click here to download a copy of the PARADISE-2 protocol.

Specific competence, such as the competence to create a Will ("testamentary capacity"), enter into a contract ("contractual capacity"), or make a gift ("donative capacity"), is often at issue In litigation involving the elderly.

IMPORTANT: Emotions, such as anxiety, depression, or mania can affect a person's ability to listen, understand, and remember new information.

For more information about mental capacity models, or other aspects of mental capacity and competency, please see Kaplan and Sadock's Comprehensive Textbook of Psychiatry - 8th Edition, pp. 3797-3806, or contact us in our Arizona or California offices.

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