INVOLUNTARY GUARDIANSHIP FOR INCOMPETENTS - A STRATEGY FOR LEGAL SERVICES ADVOCATES

• NCJ Number: 53376
• Journal: Clearinghouse Review Volume: 12 Issue: 8 Dated: (DECEMBER 1978) Pages: 451-468
• Author(s): A M MITCHELL
• Date Published: 1978
• Length: 18 pages
• Corporate Author: Legal Services Corporation
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

GUARDIANSHIP AND ANALOGOUS SYSTEMS ARE EXAMINED FROM THE PERSPECTIVE OF THE PERSONS AFFECTED. GUARDIANSHIP PROCEDURES TO DEAL WITH THE MENTALLY DISABLED, ADVOCACY, AND STRATEGIES FOR REFORM ARE DESCRIBED.

Abstract

AS LOCAL PROGRAMS REASSESS PRIORITIES AND MAKE POLICE DECISIONS ON HOW TO PROVIDE EFFECTIVE ADVOCACY TO THE MENTALLY DISABLED, IT IS ESSENTIAL TO RESOLVE AMBIVALENCES, PREJUDICES, AND PRECONCEIVED NOTIONS ABOUT THE MENTALLY DISABLED. LEGAL AND MORAL JUSTIFICATION FOR ASSUMING CONTROL OVER MENTALLY INCOMPETENT PERSONS IS BASED ON THE PARENS PATRIAE POWER OF THE STATE. EVERY STATE HAS A FORMAL STATUTORY METHOD FOR IMPOSING A GUARDIAN OVER THE PERSON AND/OR ESTATE OF AN INCOMPETENT, WITH JURISDICTION OVER PROCEEDINGS IN THE PROBATE COURT OR ITS EQUIVALENT. THIS PROCESS IS INITIATED WITH THE FILING OF A PETITION BY A RELATIVE OR INTERESTED PARTY, ASSERTING THAT THE PROSPECTIVE WARD IS UNABLE TO TAKE PROPER CARE OF HIS OR HER PERSON OR PROPERTY DUE TO ONE OF SEVERAL CONDITIONS THAT MAY INCLUDE MENTAL ILLNESS, RETARDATION, DISABILITY, CHRONIC DRUG USE, SENILITY, AND OLD AGE. MOST STATES REQUIRE SOME FORM OF NOTIFICATION TO THE ALLEGED INCOMPETENT THAT SUCH A PETITION HAS BEEN FILED. ALTHOUGH MANY STATES EXPLICITLY PROVIDE FOR JURY TRIALS IN INCOMPETENCY PROCEEDINGS, THESE TRIALS ARE RARELY HELD IN PRACTICE. APPEALS OF INCOMPETENCY DETERMINATIONS ARE RARE EVEN THOUGH THERE ARE A LARGE NUMBER OF GUARDIANSHIPS IMPOSED YEARLY. THE PROVISION OF APPOINTED COUNSEL AND PROCEDURAL DUE PROCESS CAN SERVE TO INJECT ADVOCACY INTO THE GUARDIANSHIP SYSTEM. LEGAL COMMENTATORS AND SOCIAL SCIENTISTS HAVE NOT BEEN ABLE TO DEVELOP A STANDARD OF MENTAL INCOMPETENCY THAT IS MORE PRECISE AND LESS SUBJECTIVE THAN THE STANDARD OFFERED BY THE PSYCHIATRIC PROFESSION. IN THE CIVIL COMMITMENT AREA, COURTS HAVE LEGITIMIZED THE INVOLUNTARY DETENTION BY STATES OF PERSONS WHO ARE BOTH MENTALLY ILL AND DANGEROUS. USES OF GUARDIANSHIP AND POLICY CHOICES AVAILABLE IN THE REFORM OF THE GUARDIANSHIP SYSTEM ARE EXPLORED. CASE LAW IS CITED.