Legal Provisions for Restricting Freedom of People with Mental Disability

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Legal Provisions for Restricting Freedom of
People with Mental Disability

• Emergency Custody
• Extended Custody for Mental Evaluation
• Civil Commitment
• Emergency Guardianship
• Conservatorship
• Guardianship

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Guardianship
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1818 Georgia Provisions

• The inferior courtsshall have full power to
  appoint guardians for the persons and estates of
  all idiots, lunatics and persons insane and to
  require bond and good security from all guardians
  appointed in pursuance of this act.

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Incompetency vs. Mental Illness

• What distinguishes these categories?
• What separates incompetency from MR?
• What separates incompetency leading to
  guardianship from the incompetency of children?

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Mentally Ill

• "Mentally ill" means having a disorder of thought
  or mood which significantly impairs judgment,
  behavior, capacity to recognize reality, or
  ability to cope with the ordinary demands of
  life.
• O.C.G.A. 37-3-1  (2007)

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Mentally retarded person" means a person having
a significantly subaverage general intellectual
functioning existing concurrently with deficits
in adaptive behavior and originating in the
developmental period. 37-4-2
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Incompetence

• Not necessarily insane or mentally ill
• Subject to a legal determination that he/she
  lacks sufficient capacity to make or communicate
  significant responsible decisions concerning
  his/her health or safety

8
Mentally Incompetent Persons

• After the affairs of a person are vested in a
  guardian, the power of such person to contract,
  even though restored to sanity, shall be entirely
  gone any contracts made by such person shall be
  absolutely void until the guardianship is
  dissolved. 13-3-24

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Guardianship Reform

• Focused on extensive assessment of capacity in
  context of daily living
• Heightened due process steps, including
• Notice
• Right to presence at hearing
• Right to Counsel
• Access to impartial evaluators
• Ongoing judicial or administrative monitoring

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Vocabulary of Guardianship

• Guardian
• Conservator
• Committee
• Ward
• Incompetent complete, irrevocable
• Incapacitated partial, situational, temporary

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Review How is Mental Illness Diagnosed?

• Physical Examination
• Psychiatric History
• Mental Status Examination

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Review Mental Status Examination

• General Appearance
• Attitude Survey
• Motor Behavior
• Affective State
• Thought Processes
• Thought Content
• Perceptive Capabilities

• Intellectual Functioning
• Orientation
• Memory
• Judgment

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Review Mini Mental Status Exam

• Used as a screening instrument
• Includes
• Orientation
• Registration
• Attention and Calculation
• Recall
• Language

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Goals of Geriatric Psychiatric Exam

• Is a psychiatric disorder present?
• Are there any treatable or reversible causes for
  the condition?
• Assess functional level of the patient and
  determine degree of disability, if any.
• What support system does the patient have and
  what additional resources might they need

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Geriatric Psychiatry

• A geriatric psychiatrist is a specialist with
  medical training in the diagnosis and treatment
  of mental disorders that may occur in older
  adults.

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Common findings in Geriatric Psychiatric Exam

• Depression and anxiety
• Dementia
• Delusional Disorders (sometimes psychosis as part
  of schizophrenia)
• In hospital settings, Delirium

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Psychiatric EvaluationOther Issues

• Could the problem be an underlying medical
  disease (e.g. polypharmacy)?
• Is the patients behavior part of normal aging?

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A Finding of Co-morbidity is Common and Should be
Considered in any Mental Health
AssessmentComorbitity is also a major
Confounding Issue in Legal Disposition
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Dementia

• Syndrome characterized by impairment in three of
  five neurophysical and behavioral domains
• Memory/Language
• Speech
• Visuospatial ability
• Cognition
• Mood/Personality

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Types of Dementia

• Alzheimer Disease
• Cerebrovascular Dementia
• Parkinsons Disease

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Alzheimer Disease

• A progressive and fatal brain disease
• The most common form of dementia
• No current cure
• Definitive diagnosis only on autopsy

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Alzheimer Disease

• Symptoms
• Memory loss
• Difficulty performing familiar tasks
• Problems with language
• Disorientation to time and place
• Poor or decreased judgment
• Problems with abstract thinking
• Misplacing things
• Changes in mood or behavior (note overlap)
• Changes in personality
• Loss of initiative

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Functional MRI Exam
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Alzheimers Brain after Autopsy
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The difference between Alzheimer's and normal
age-related memory changes
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Cerebrovascular Dementia

• Based in cerebrovascular (brain blood vessel)
  pathology
• Abrupt onset with fluctuating or gradual decline
  in cognitive function
• Often history of stroke or localized neurological
  signs
• Treatable, particularly if identified early
• Can be present at the same time as other dementias

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Brain After Stroke
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Parkinsons Disease

• Symptoms
• Hypokinesia (for example difficulty in initiating
  movement),
• Slowness of movement,
• Tremor in the limbs, face or tongue,
• Rigidity and gait disturbance

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Factors leading to a declaration of Incompetence

• Decrease in Functional Ability
• Decrease in Cognitive ability
• Decrease in Judgment/Responsibility

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Adult Guardianship 29-4-1

•  The court may appoint a guardian for an adult
  only if the court finds the adult lacks
  sufficient capacity to make or communicate
  significant responsible decisions concerning his
  or her health or safety.

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Adult Guardianship 29-4-1

• An adult shall not be presumed to be in need of a
  guardian solely because of a finding of criminal
  insanity or incompetence to stand trial or a
  finding of a need for treatment or services under
  other provisions of the law.

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Adult Guardianship 29-4-1

• All guardianships ordered pursuant to this
  chapter shall be designed to encourage the
  development of maximum self-reliance and
  independence in the adult and shall be ordered
  only to the extent necessitated by the adult's
  actual and adaptive limitations after a
  determination that less restrictive alternatives
  to the guardianship are not available or
  appropriate.

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Qualifications of Guardians 29-4-2

• No individual may be appointed as guardian of an
  adult who
• is a minor, a ward, or a protected person
• has a conflict of interest with the adult unless
  the court determines it is insubstantial or that
  the appointment would be in the adult's best
  interest or
• is an owner, operator, or employee of a long-term
  care facility where the adult is receiving care,
  unless related to the adult by blood, marriage,
  or adoption.

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Order of preference in selection of guardians
29-4-3

• The court shall appoint as guardian that
  individual who will best serve the interest of
  the adult, the court may disregard the
  preferences listed only upon good cause shown.
• At any time prior to the appointment of a
  guardian, an adult, their spouse, adult child, or
  parent may nominate in writing an individual
  andthat nomination shall be given preference

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Order of preference in selection of guardians
29-4-3

• The spouse
• a parent
• a guardian previously appointed, including during
  minority of the adult
• a friend, relative, or any other individual found
  suitable and appropriate and willing to accept
  the appointment and
• the county guardian.

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Requirement of a writing nominating a guardian
29-4-3

• Must contain an express nomination . . .
• must be signed or acknowledged . . .in the
  presence of two witnesses who sign in the
  individual's presence and
• may be revoked by the individual by obliteration,
  cancellation, or by a subsequent inconsistent
  writing, whether or not witnessed.

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Petitions for Guardianship 29-4-10

• Any interested person, including the proposed
  ward, may file a petition
• The petition shall set forth extensive
  information to identify
• the proposed ward, relatives, potential
  guardians,
• Facts supporting the need for a guardian
• foreseeable limitations on guardianship   .

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Petitions for Guardianship 29-4-10

• Evidence of a living will, durable power of
  attorney for health care, advance directive for
  health care, order relating to cardiopulmonary
  resuscitation, or other instrument prepared in
  the event of incapacity, and,
• the name and address of any fiduciary or agent
  named such instrument
• whether anyone has consented to serve as
  guardian   

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Formalities of the Petition 29-4-10

• The petition shall be sworn to by two or more
  petitioners or shall be supported by an affidavit
  based on personal knowledge of a physician, a
  psychologist or a licensed clinical social
  worker,
• stating that the affiant has examined the
  proposed ward within 15 days prior to the filing
  of the petition

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Standard for the court 29-4-10

• The affidavit must specify that the proposed ward
  was determined to lack sufficient capacity to
  make or communicate significant, responsible
  decisions concerning the proposed ward's health
  or safety.

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  Obligations of guardian 29-4-22

• A guardian shall make decisions regarding the
  ward's support, care, education, health, and
  welfare and shall consider the expressed desires
  and personal values of the ward. .
• Encourage the ward to participate in decisions,
  act on the ward's own behalf, and develop or
  regain the capacity to manage the ward's personal
  affairs.

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Legal Standard of Guardian 29-4-22

• A guardian shall at all times act as a fiduciary
  in the ward's best interest and exercise
  reasonable care, diligence, and prudence and
• must promptly disclose any conflict of interest
  between the guardian and the ward when it arises
  and seek the court's determination. 29-4-24.

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Emergency Guardianship

• Any person may file a petition for appointment of
  an emergency guardian, and will be required to
  present facts that establish an immediate and
  substantial risk of death or serious physical
  injury, illness, or disease unless an emergency
  guardian is appointed 29-4-14

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  Conservator for adults 29-5-1

• The court may appoint a conservator for an adult
  only if the court finds the adult lacks
  sufficient capacity to make or communicate
  significant responsible decisions concerning the
  management of his or her property.

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Civil Commitment Rights Retained

• Civilly Committed Patients shall retain all
  rights and privileges granted to other persons or
  citizens
• Including civil, political, personal or property
  rights
• Not to be considered legally incompetent for any
  purpose

37-3-140
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   Mentally retarded Clients' right to vote
 Each client in a facility who is eligible to
vote shall be given his right to vote in primary,
special, and general elections and in
referendums. The superintendent or regional state
hospital administrator of each facility shall
permit and reasonably assist clients   (1) To
obtain voter registration forms, applications for
absentee ballots, and absentee ballots   (2) To
comply with other requirements which are
prerequisite for voting and   (3) To vote by
absentee ballot if necessary. 37-4-104.
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 Retention of rights and privileges by clients
generally right to due process    Clients
shall retain all rights and privileges granted
other persons or citizens. Notwithstanding any
other provision of law to the contrary, no person
who is receiving or has received services for
mental retardation shall be deprived of any
civil, political, personal, or property rights or
be considered legally incompetent for any purpose
without due process of law.
37-4-100. 
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How does a finding of incompetency impact
positive rights?
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  Retained Rights of the Ward 29-4-20

• To communicate freely and privately with persons
  other than the guardian
• To bring an action relating to the guardianship,
• To the least restrictive form of guardianship
  assistance and
• To be restored to capacity at the earliest
  possible time.

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Rights of the ward 29-4-20

• The appointment of a guardian is not a
  determination regarding the right of the ward to
  vote or that the ward lacks testamentary
  capacity. Appointment of a guardian does not
  revoke the powers of an agent under a durable
  power of attorney for health care. 29-4-21

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 Rights privileges removed 29-4-21 

• Unless retained in the court's order
• Contract marriage
• Make or change contracts
• Consent to medical treatment
• Establish a residence or dwelling place
• Revoke a revocable trust established by the ward
  and
• Bring or defend any action at law or equity,
  except relating to guardianship.

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Question

• Should older people be declared incompetent at a
  specific age, the same way that children are?

54
Question

• What features distinguish childhood and old age
  that would argue for similar or different
  treatment?

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Review Ages for Legally valid Consent

• Vol. MH Tx 12
• Tried for Crime 13 (murder, etc)
• Have Sex 16
• Vote 18
• Have Abortion 18
• Get Married 18(unless pregnant)
• Drink Alcohol 21

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Review Legal Competency to ConsentNo age limits

• Medical Treatment or Surgery in connection with
  pregnancy, or childbirth (females only)
• Tx for STD/HIV
• Treatment for Substance Abuse
• Right to refuse abortion
• Civil commitment

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What about a progressive scale of presumptive
limited guardianship for seniors?
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Power of Limited Guardian to Control?

• Travel or location of residence 80
• Refusal of medical treatment 80
• Making or amending contracts 85
• Lending or borrowing money 85
• Releasing confidential records 85
• Driving 80
• Marrying 85
• Voting 85
• Making a will 90

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Question?

• You are the attorney for Mrs. Atwood. Her
  guardianship hearing is attended by her three
  children and her family physician. At the
  hearing, no one challenges the guardianship, and
  your client is unwilling to testify. She tells
  you she is embarrassed because she is forgetful
  and doesnt want to answer too many questions in
  front of her children
• What is your role as her attorney?

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Question

• At Mrs. Atwoods guardianship hearing, her family
  doctor is the only expert offered by the family,
  who petitioned for guardianship, as a witness.
• As her attorney, how do you respond to this
  potential witness?

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Evidence

• Mrs. Atwoods children testify that she has given
  her grandchildren 50 or 100 dollars in some
  months when her total monthly income was 900 per
  month.

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Question

• What is the significance of Mrs. Atwoods income
  to a declaration of incompetence?
• Does being poor mean you are more likely to need
  a guardian? Or does being wealthy?

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Question

• Mrs. Atwoods family reports a change in spending
  habits, lavish expenditures, gifts to new
  charities and a new boyfriend as evidence of
  incapacity.
• Have they made the case for a guardianship?

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Question

• Mrs. Atwood loves the look of candles. They
  remind her of the many parties she attended at
  the commune where she lived as a flower child
  during the 1960s.
• However, she has twice started fires with candles
  in her apartment and her family petitions for a
  guardianship so that she can be place in a
  nursing home where she will be forbidden to have
  candles.
• Can you support her in opposing the guardianship?

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Question

• Your client, Mr. Bowers, has recently lost his
  wife. After a year of mourning, he begins
  visiting the local Kit Kat Club as a diversion.
• He announces at a New Years party that he has
  decided to give his sizeable fortune (10
  million) to Bambi, a pole dancer at the Kit Kat
  Club.
• His children want to have him declared
  incompetent.
• What result?