If you have appointed a health care proxy to make medical choices for you should you become incapacitated, you may be wondering how incapacity is determined. Legal incapacity is determined by the courts. Clinical incapacity or temporary incapacity may be an on-the-spot judgment call by your health care medical team or the courts.
Legal incapacity
Legal incapacity is often challenged when an elderly person can no longer care for themselves or a person loses the cognitive ability to make good health care choices. Health care practitioners, in most cases, cannot override an adult patient's will unless a court order allows it.
Clinical incapacity
This type of incapacity is often temporary and only tied to one situation. For example, a patient while in surgery needs a health choice made for them while they are under general anesthesia. Often in this situation, the choice may be made by a health care practitioner, legal proxy or close family member. As soon as the person is capable, they regain the right to make their own choices.