Practice Pointer
| Publication year | 1998 |
| Pages | 20 |
| Citation | Vol. 3 No. 1 Pg. 20 |
Representing Persons With Mental Disabilities
Linda V. Priebe, J.
Your newest client, Paul Miller, approaches you for help because his small business is failing. He is generally a competent business person, and for the most part his business is growing and profitable. Periodically, Mr. Miller goes on incredible buying sprees for a few days or weeks. He grossly overstocks his inventory and contracts for extensive remodeling and custom equipment. These buying sprees sink him so heavily in debt that his business teeters on the edge of bankruptcy. Mr. Miller also has periods when he is so full of guilt that he considers abandoning his business.
His personal life follows much the same pattern. For months, events within his family occur at a regular pace. Then Mr. Miller begins working around the clock, getting by with one or two hours of sleep per night. He is filled with grand plans for his business and personal lives, and appears fully energized to accomplish those plans.
If you are questioning whether Mr. Miller may have a mental disability, you are correct. Mr. Miller's behavior displays symptoms of a major mental illness commonly referred to as bipolar disorder. Bipolar disorder is characterized by dramatic mood swings, from extreme mania to abject depression. Major mental illness, such as bipolar disorder, is one of several categories of mental disabilities that may have an effect upon an attorney's representation of a client.
Common Types of Mental Disability
The term "mental disability" includes several types of mental disorders: mental retardation, developmental disability, mental illness, and/or traumatic brain injury. Persons with mental retardation are characterized by below average intellectual or cognitive functioning, which becomes evident during the formative developmental years. Developmental disability (including mental retardation) is defined under federal law to include severe mental impairments manifested before the age of twenty-two which substantially limit one's ability to function in three or more of seven major life areas. The seven major life areas are independent living, economic self-sufficiency, language, learning, self-care, self-direction, . and mobility.[1] Mental illnesses include such things as schizophrenia and bipolar disorder, and are generally thought to result, at least in part, from some type of chemical imbalance in the brain.[2] Mental disability also may result from traumatic brain injury caused by physical damage to the structures of the brain from automobile collision, stroke, asphyxiation, or the like.
Common Legal Implications of Types of Mental Disability
An attorney must be aware of the type of mental disability [i.e]., traumatic brain injury versus mental illness) that a client may have to effectively represent that client. The different types of mental disabilities can have very different legal implications for your client. For example, a common issue involving persons with mental disabilities is whether the person was legally competent at a particular point, such as at the signing of a will or contract, or during the commission of a crime.
In persons with mental retardation, developmental disabilities, or traumatic brain injury, the person's mental condition is the result of something that has caused a long-term effect on cognitive functioning. Medical science has no treatment that reverses the cognitive effects of mental retardation, developmental disability, or traumatic brain injury. Persons with these types of mental disabilities may meet the legal criteria for adjudication of incompetence, depending upon the severity of their disability and the complexity of the subject matter requiring decision or action. A person with a mental disability may simultaneously be competent for one purpose and incompetent for another. The level of cognitive functioning required for effective decision-making regarding a subject such as one's criminal defense may be less than that required for decisions such as choosing where to live. The level of competence of a person with mental retardation, developmental disability, or traumatic brain injury may also improve through education about the legal system or other training.
In contrast to the long-term nature of these disabilities, the mental condition of a person with a mental illness, such as Mr. Miller, naturally fluctuates. As a result, persons with mental illnesses may be completely free of symptoms at one time, yet be significantly impaired (to the point of meeting the legal criteria for incompetence) a few weeks or months later.
This fluctuation of mental condition is thought to relate in part to changes in body chemistry, and thus brain chemistry. In addition, it is possible to modify the brain chemistry of many persons with mental illness through drug therapy. This treatment may reduce, and in some instances eliminate, the symptoms of mental illness. As a result, a person with a mental illness whose condition has deteriorated (commonly referred to as "decompensation") to the point of incompetence...
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