Article on Legal Guardianship for Those Who Suffer From Mental Illness
K-M lives at her New Hampshire condominium in the winter and stays at a family camp in Maine in the summer. 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. K-M claimed to hear voices and believed that others were spying on her and videotaping her. She assaulted and harassed neighbors and lived without indoor plumbing because she was unable to arrange for home repairs. 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. 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. 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.
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. Each guardianship case is unique and presents difficult challenges affecting important rights and fundamental interests. 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. When the court appoints a guardian, the ward loses the ability to make unilateral decisions regarding his or her welfare. 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.
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. Courts frequently struggle to strike a balance between personal autonomy and personal welfare. 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.
This Note focuses on how courts in New England determine when an individual is mentally incapacitated due to mental illness. Part II.A presents a description of the evolution of guardianship laws from solely common-law to statutorily based. 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. Next, Part II.C-D describes the adjudication process generally, types of guardianship, and the factors courts consider when assessing capacity. Part II.E introduces the concept of supported decision-making, which some countries have implemented to supplement existing guardianship law.
Part III analyzes the effectiveness of instituting a bright-line rule regarding mental capacity. This Note recommends implementation of a uniform assessment framework and computerized statewide case-management systems to enhance the predictability and efficiency of guardianship proceedings. Finally, this Note proposes an intermediate option for individuals in the grey area between absolute mental capacity and incapacity.