Legal guardianship of individuals incapacitated by mental illness: where do we draw the line?

Author:David, Meta S.

"The ward has been under the power of a duly-appointed conservator continually since 1871. He is about 59 years old, and is a man of limited education. His estate ... amounts to about $2,000. During the war of the Rebellion he enlisted, and was mustered into the service of the United States as a soldier, and was honorably discharged from such service 38 days after such enlistment.... Prior to his enlistment he lived with his father on a farm. Since his discharge he has worked about from place to place, caring for himself and doing odd jobs of common work. He is a man of good habits; a member of the church; has been and now is an elector; but in mental capacity is far below the average, simple minded, easily influenced, and has not sufficient ability or mental capacity to manage or control any considerable amount of money, and, if allowed to, would soon waste or squander it." (1)


    K-M lives at her New Hampshire condominium in the winter and stays at a family camp in Maine in the summer. (2) Although they were estranged, K-M's sister Diane petitioned the court for guardianship because she believed K-M was at risk of harm, both physically and financially, due to mental illness. (3) KM claimed to hear voices and believed that others were spying on her and videotaping her. (4) She assaulted and harassed neighbors and lived without indoor plumbing because she was unable to arrange for home repairs. (5) In addition to K-M's personal welfare, Diane was also concerned about her sister's financial well-being because K-M failed to pay taxes or condominium fees. (6) An independent appointee of the court visited K-M to serve her with notice of the petition and reported that there was a "paranoid, passive aggressive flavor to her reaction" to his visit and to the court proceeding generally. (7) Although K-M argued the evidence demonstrated a mere disagreement between Diane and herself rather than incapacity, the court found that K-M lacked sufficient mental capacity to care for herself and thus granted Diane's petition for guardianship. (8)

    The situation involving K-M is an example of when guardianship may be warranted due to mental illness; in this case, mental illness left K-M unable to care for herself and manage her financial affairs. (9) Each guardianship case is unique and presents difficult challenges affecting important rights and fundamental interests. (10) In many ways, the guardian's legal relationship to the incapacitated person (the ward) is similar to a parent's legal relationship to a child. (11) When the court appoints a guardian, the ward loses the ability to make unilateral decisions regarding his or her welfare. (12) The purpose of guardianship is to protect vulnerable individuals from harming themselves and operates as the fundamental rationale behind the court's ability to take certain rights and freedoms from certain individuals. (13)

    Although the process of appointing a guardian varies from state to state, judges generally bear the responsibility of determining whether an individual lacks mental capacity. (14) Courts frequently struggle to strike a balance between personal autonomy and personal welfare. (15) Judges evaluate mental capacity on a case-by-case basis and are often reluctant to appoint a guardian unless there is a clear reason to do so. (16)

    This Note focuses on how courts in New England determine when an individual is mentally incapacitated due to mental illness. (17) Part II.A presents a description of the evolution of guardianship laws from solely common-law to statutorily based. (18) Part II.B follows this historical review with a discussion of the possible abuses of the guardianship system and how courts mitigate the risk of such abuse. (19) Next, Part II.C-D describe the adjudication process generally, types of guardianship, and the factors courts consider when assessing capacity. (20) Part II.E introduces the concept of supported decision-making, which some countries have implemented to supplement existing guardianship law. (21)

    Part III analyzes the effectiveness of instituting a bright-line rule regarding mental capacity. (22) This Note recommends implementation of a uniform assessment framework and computerized statewide case-management systems to enhance the predictability and efficiency of guardianship proceedings. (23) Finally, this Note proposes an intermediate option for individuals in the grey area between absolute mental capacity and incapacity. (24)


    1. The Evolution of Guardianship Law: From the King to the Courts

      Modern guardianship law is rooted in the notion of parens patriae, or "parent of the country." (25) The parens patriae power was premised on the inability of a mentally disabled person to protect or care for himself or herself. (26) originally, the King of England exercised parens patriae power in order to preserve the property of a person whom he believed to be mentally incapacitated. (27) Eventually this power evolved into a broader governmental authority to protect the general welfare of individuals unable to care for themselves. (28) In the United States, each state assumed a measure of parens patriae power after the American Revolution, and was thus vested with authority to protect the welfare of vulnerable citizens by acting on their behalf. (29)

      Many states, including those in New England, were slow to adopt comprehensive statutory laws regarding guardianship. (30) But today, every state has laws relating to the guardianship of individuals incapacitated by mental illness. (31) Although many New England states significantly reformed their guardianship laws within the last five years, the laws of each state continue to be unique in some areas, including procedures and petition requirements. (32) Furthermore, statutory law is often intentionally vague to provide judges with considerable discretion to determine mental capacity on a case-by-case basis. (33) statutory law is thus used as a springboard from which common law is utilized to flesh out acceptable parameters for mental capacity in that jurisdiction. (34)

      Historically, there were relaxed standards for awarding guardianship, and guardians were given complete authority over wards. (35) However, many of the recent statutory reforms provided increased procedural and substantive protection for allegedly incapacitated individuals. (36) The new laws stress the desire to allow individuals to retain decision-making authority to the greatest extent possible. (37)

      In this regard, every state in New England has instituted limited-guardianship statutes. (38) These limited-guardianship laws focus on assessing an individual's functional abilities, and restrict a guardian's authority to specific areas in which the ward has a proven functional incapacity. (39) All of the New England states, except Maine, mandate that less-restrictive alternatives to guardianship be pursued and found ineffective before a guardianship proceeding may commence. (40) These statutory reforms in guardianship law indicate a shift in thinking, moving away from merely viewing a ward as needing a surrogate decision-maker and, instead, taking a person-centered approach allowing retention of autonomy to the greatest extent possible. (41) These laws will have a significant impact in the future because the number of people in the united states requiring guardians is expected to increase considerably in the years ahead as a result of the aging population and an increasing number of younger adults with mental illness, among other factors. (42)

    2. Possible Abuse of Legal Guardianship: Protecting Vulnerable Individuals from Self-Interested Parties

      The potential for abuse exists in guardianship proceedings. (43) Although the purpose of guardianship law is to protect vulnerable citizens from harm, some judges may require only minimal mental capacity as sufficient to deny guardianship, in an effort to protect individuals from abuse by self-interested parties. (44) Such abuse may take many forms, including theft, neglect, exploitation, or forced medical treatment against the wishes of the ward. (45)

      In an effort to prevent such abuse, states impose restrictions on who may be appointed guardian of a proposed ward. (46) The law often prohibits those who may seek to profit from a guardianship appointment or physically harm the ward from pursuing appointment as a guardian. (47) In addition, some courts utilize volunteers or court appointees to provide independent evaluations of the proposed ward. (48) Furthermore, allegedly incapacitated individuals are usually entitled to be present at guardianship hearings. (49) Many states also give the alleged incapacitated person the right to be represented by counsel; Connecticut, Maine, and New Hampshire expressly grant this right to proposed wards. (50)

      To mitigate the risk of abuse after the appointment of a guardian, state laws require monitoring and oversight of the guardianship relationship. (51) Guardians in every New England state are required to submit reports at least annually detailing the decisions made for the ward during the previous year. (52) These annual reports must also include an updated evaluation of the ward's mental capacity and an accounting of the ward's finances. (53) In New Hampshire, the Rockingham County Probate Court recruits volunteers to visit wards, guardians, and care providers at least annually and to submit reports to court officials regarding these visits. (54) Connecticut requires hearings at least every three years to determine whether changes need to be made to the guardianship appointment. (55) In every New England state, the ward may also petition the court for modification or termination of the guardianship order. (56)

    3. Guardianship Proceedings: Types of Guardianship and the Guardianship Process

      1. Types of Guardianship

        There are two conventional types of guardianship: guardianship over the person and guardianship over the estate, also known...

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