incompetency

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Incompetency is a lack of physical or intellectual ability, or to be deemed unqualified of doing something or taking responsibility. Such inability is usually caused by a mental illness or disability. 

Here are examples of incompetency in different legal areas:

Civil Procedure

  • Legal Representative: For incompetent plaintiffs or defendants, they need representatives 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 deemed incompetent. See F.R.C.P Rule 17(c).
  • Diversity: Diversity cannot be created by appointing representatives from different states than those deemed incompetent, as the legal representatives are deemed to be residents of the same state.
  • Default of judgment: If defendants fail to plead or defend, plaintiffs can request an entry of default. The clerk usually should enter the default against defendants. However, those deemed incompetent cannot be entered into a default against themselves. A default judgment may be entered only when the incompetents are 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, even if the offer is irrevocable. 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. Mental incompetents lack the capacity to understand the contract. A contract with someone deemed incompetent is voidable unless the contract involves a person who has legal guardianship of them. If the incompetent person continues to retain benefits, the contract gets implied affirmed. If the incompetent person later gains capacity, they can ratify the contract.

Criminal Law

Evidence

  • Competency of Witness: An interested party is deemed to be incompetent to testify in support of his or her own interest against the decedent concerning communications or transactions between them (State Dead Man’s Statute). A waiver is applied if the testimony of the decedent gets before the jury through deposition of the decedent taken before he died.

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 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.

[Last updated in May of 2022 by the Wex Definitions Team]