Who decides that you can no longer decide?

Updated 2026-10-16 · Expert review in progress

The short answer

It depends on the decision. For a medical treatment, the health care provider decides whether you can consent right now and must document why. For a power of attorney that starts at incapacity, the person you named, or a doctor or psychologist, confirms it in writing. Only a judge, after a hearing, can appoint a guardian.

People often imagine a single moment when someone is declared "incompetent" and everything changes. Real life is quieter than that. There are several different questions, asked by different people, for different decisions.

This page answers who decides if you are incompetent, or more precisely, who decides that you can't make a particular decision. It uses Washington's law as the worked example and is part of our guide to what happens if you can't speak for yourself.

Everyone starts out presumed capable

The starting point matters. Washington's guardianship law says an adult "is presumed to have legal capacity" (RCW 11.130.037). For medical decisions, a person of the age of consent is presumed to have capacity too (RCW 7.70.065).

So the burden is on whoever says otherwise. Washington's supported decision-making law adds that the way you communicate is not, by itself, a reason to find you incapable (RCW 11.130.710).

The three places capacity gets decided

Setting	Who decides	What they decide	Washington reference
A medical treatment	Your health care provider	Whether you can consent to this decision now	RCW 7.70.065
A power of attorney that starts at incapacity	The person you named, or else a physician or licensed psychologist	Whether the trigger in your document has happened	RCW 11.125.090
Guardianship or conservatorship	A judge, or a jury if requested	Whether a court appointee is needed, and for which decisions	RCW 11.130.265

Each one is narrower than people expect. None of them is a general verdict on you as a person.

1. At the bedside: your health care provider

For a medical decision, the provider decides. Washington sets the standard in statute. A provider may find a patient lacks capacity only because of a "demonstrated inability to understand and appreciate" their condition, the proposed treatment and its alternatives. The inability to reach an informed decision must result from cognitive impairment (RCW 7.70.065).

The provider must document the basis in the medical record. And the finding is about one decision at one time. You might be unable to weigh surgery on the morning after a fall, and able to choose your rehab facility a week later.

When a provider does find you can't consent, they turn to the statute's list. It starts with a guardian, then your health care agent, then a spouse, adult children and other relatives. Our post on medical decisions without a power of attorney walks through it.

2. In your own documents: the person you choose

A power of attorney usually takes effect when you sign it. But you can make it "spring" into effect at incapacity instead (RCW 11.125.090).

If you do, you can name who confirms the trigger. That might be your doctor, a trusted friend, or two people together. Sometimes nobody is named, or the person named can't or won't do it. Then Washington allows a written finding by either of these:

A physician or licensed psychologist who personally examined you and isn't related to you or your agent by blood or marriage.
A judge or appropriate government official, for the parts of the definition about being missing or stuck abroad.

The definition being applied is in the same chapter. Incapacity means being unable to manage your property, business, personal or health care affairs because of an impairment in receiving and evaluating information or making or communicating decisions (RCW 11.125.020).

This is the one setting where you get to choose the decider in advance. Our post on springing vs immediate powers of attorney helps you weigh that choice.

3. In court: a judge

Guardianship and conservatorship are where decisions can be taken out of a person's hands by court order. Only a judge can do that, and Washington builds in safeguards.

It's a legal decision, not a medical one. The court must base it on problems managing health, safety or self-care over time. Age, eccentricity, poverty or a medical diagnosis isn't enough by itself (RCW 11.130.265).
A court visitor investigates. They interview the person, visit the home and report what the person can and can't manage (RCW 11.130.280).
A professional examines the person. A physician, psychologist, nurse practitioner or physician assistant reports on their abilities and limits (RCW 11.130.290).
The person has rights. They're told of the right to a lawyer of their choice and to a jury trial on whether a guardian is needed (RCW 11.130.275). They can attend, present evidence and question witnesses (RCW 11.130.295).
The standard is high. The judge needs clear and convincing evidence, and must find that less restrictive options won't work (RCW 11.130.265).

Even then, the court gives only the powers the person needs. In a limited guardianship, the order lists the guardian's powers, and other decisions stay with the person. Our page on guardianship vs power of attorney compares the two in detail.

Can capacity come back?

Yes, and the law expects it to. A Washington guardian must tell the court right away if the person's condition improves so they can exercise rights that were removed (RCW 11.130.325).

The person can ask the court to end or change a guardianship, and has the right to choose a lawyer to do it. If they present prima facie evidence, the court must end the guardianship unless the basis for it is proven again (RCW 11.130.355).

At the bedside it's simpler still. A provider's finding covers one decision. When you can decide again, you decide again.

What about support short of all this?

Washington recognizes supported decision-making agreements for adults with disabilities (RCW 11.130.715). A supporter helps someone understand options and communicate their choice, without making it for them. Signing one can't be used as evidence for a guardianship petition (RCW 11.130.710).

How do you keep the choice with you?

Here is a typical case, a composite. Frances, 70, keeps a garden and walks her spaniel each evening. Her financial power of attorney springs at incapacity. In it, she named her longtime doctor and her close friend Ann as the two who must agree that the trigger has happened.

She didn't leave it to chance or to a courtroom. She decided, in advance, who decides.

You can do the same with a few documents:

A durable financial power of attorney and medical power of attorney, with backups named.
If either springs, a clear line naming who confirms incapacity.
Written wishes, so whoever decides knows what you'd want.

If memory changes are part of the picture, read dementia and power of attorney. If you're helping a parent, see power of attorney for an elderly parent. And when the people you'd name aren't close by, our guide to choosing professional help compares the options.

Common questions

Who decides if an elderly person is incompetent?

There isn't one decider. A doctor decides whether a person can consent to a particular treatment. The person's own power of attorney can name who confirms incapacity for that document. Only a judge can appoint a guardian, after an evaluation and a hearing.

Can a doctor declare someone incompetent?

A doctor can find that a patient lacks capacity for a particular medical decision, and in Washington must document why. A doctor's letter can also trigger a springing power of attorney. But a doctor can't appoint a guardian or take away someone's legal rights; only a court can.

Does a dementia diagnosis mean someone lacks capacity?

No. Washington's guardianship law says a medical diagnosis by itself isn't enough. Capacity is judged by what a person can actually understand and manage, decision by decision.

Can a person fight a finding that they lack capacity?

In court, yes. In Washington, a person facing guardianship has the right to a lawyer of their choice, a jury trial, to attend the hearing and to present evidence. After a guardian is appointed, they can petition to end or change it.

Sources

This page is general information, not legal or financial advice. Laws vary by state.

Keep reading

Incapacity and carePower of attorney for an elderly parentHow to get power of attorney for an elderly parent: your parent signs it, not you. How to raise it, what Washington requires, and what to do if it's late.Incapacity and careLong-term care planning: a plan, not just a policyLong term care planning is more than paying for care. Where you'd live, who checks in, who pays the bills and who can sign for you, written down early.Incapacity and careIf you can't speak for yourself: incapacity, explainedWhat happens if you become incapacitated without a power of attorney, who decides for you, and how guardianship, care plans and wishes fit together.