Prine No Title
| Jurisdiction | Vermont,United States |
| Citation | Vol. 2002 No. 06 |
| Publication year | 2002 |
June 2002. Prine No Title
Barbara Prine, Esq.
Early in my career at the Disability Law Project, I was assigned to work with a client with cognitive limitations who had been charged with committing a crime. Asked by the competency evaluator to explain the role of the lawyers and judge in his case, the defendant responded, "They bring joy and happiness to people, and goodness and light." Needless to say, the judge found him incompetent.
For the lawyer who works infrequently with clients with mental illnesses or cogni-tive limitations, the varying standards of mental capacity can be confusing. What is criminal incompetence? What is the dif-ference between "incompetence" and "not guilty by reason of insanity"? Does a defendant who is incompetent to stand trial need a guardian ad litem? What is the difference between a "guardian" and a "guardian ad litem"?
This article examines the standards for appointment of a guardian ad litem, the determination of criminal incompetence, the circumstances under which a not guilty by reason of insanity defense may be raised, and the determination of need for an involuntary guardianship. It discusses each standard individually, and their rela-tionships. Finally, it takes a brief look at the possible directions in which the law may evolve.
A guardian ad litem ("g.a.l.") is a per-son appointed by the court to protect the interests of an individual who is unable to understand the court proceeding or to give direction to his or her attorney. An adult with a mental disability may need a g.a.l. when he or she "does not understand the nature of the proceeding or is unable to communicate effectively with counsel."1 A litigant is considered "able to communi-cate effectively or to be communicative when he or she is able to convey informa-tion and express opinions responsively to questions related to the proceeding."2 A g.a.l. is usually appointed for individuals with the lowest level of comprehension. This standard, codified in the Family Rules, is explicitly applicable to involun-tary guardianships, involuntary treatment, sterilization, probate proceedings, and criminal matters.3 Most likely this stan-dard would be applied in any legal pro-ceeding in which the individual's ability to understand or to give direction is called into question. Procedurally, the court may appoint a g.a.l. by its own motion or on motion of counsel.4 The Court must make a specific finding that the person requires a g.a.l.5 The appointment lasts only for the length of the particular legal proceeding.
The g.a.l. acts as an independent advisor and advocate whose goal is to safeguard and protect the respondent's best interests and legal rights.6 Ultimately, it is the court's duty to ensure that the interests of people who are incapacitated are protected and preserved. Appointment is mandatory upon a finding that the litigant is unable to communicate with his or her attorney regardless of whether the procedure is civil or criminal in nature.7 This is partic-ularly true when fundamental rights are involved, even over the objections of the person who is incapacitated.8 Otherwise, conflicts and ethical issues arise when legal counsel acts as both client and attor-ney. "An attorney can effectively argue the alternative courses open to a client only to one assumed to be capable of mak-ing a discriminating choice."9
However, requesting a g.a.l. for a client is a dramatic step and should be taken only when necessary. The appointment of a g.a.l. removes from the individual the
Barbara Prine, Esq.
right to direct the legal proceeding. In criminal matters when a defendant is found to be criminally competent, a previ-ously appointed g.a.l. must be discharged. "The retention of a g.a.l. for a competent adult seriously impinges upon the defen-dant's rights to due process guaranteed by...
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