Posts Tagged ‘mental illness’

Arizona Guardianship and Mental Health Treatment

SEPTEMBER 15, 2014 VOLUME 21 NUMBER 33

A guardian (of the person) is often said to have all the powers over her ward that a parent would have regarding a minor child. In other words, if the court appoints you as guardian over your mother or father, you have (at least in a legal sense) switched roles. But there are some things a guardian can not do — chief among them, at least in Arizona, is a limitation on a guardian’s ability to secure inpatient mental health treatment.

A word of warning is appropriate here: all of our newsletters focus on Arizona law — though the principles are often similar in other states. This installment will not be one of those. It relies completely on an Arizona statute and practice that are not widespread — so far as we know, no other state has quite the same approach to getting inpatient mental health care for someone under guardianship.

Generally speaking, an Arizona guardian has the authority to approve or arrange for mental health treatment for her ward. The guardian can authorize the administration of psychotropic medications. Similarly, the guardian can approve psychiatric treatment in an outpatient setting, or the delivery of psychiatric services to a ward who is in the hospital, a nursing home or a secure residential facility.

But an Arizona guardian does not have the power to place her ward in a locked psychiatric facility without further court involvement. That is expressed in Arizona law by limiting the guardian’s authority to admit her ward to a “level one behavioral health treatment facility.” That describes a locked-ward inpatient psychiatric program, so a guardian is usually unable to admit her ward to involuntary mental health treatment in a locked psychiatric ward.

How does a mentally ill patient get inpatient mental health treatment when it is required? There are two ways: either the mental health system must initiate an involuntary treatment petition (what is sometimes called a “civil commitment” proceeding), or the guardian must have gotten special authority to admit her ward to inpatient treatment in advance.

Why does it take an additional proceeding to get needed mental health care for an ill ward? Because the mental health system if very protective of the civil rights of individual patients, and involuntary placement in a locked ward looks very much like incarceration to the unhappy patient.

Would it make sense, then, for every Arizona guardian to get the mental health authority in advance, just in case it turns out to be needed? No — that is not even possible unless the ward is actively mentally ill at the time of the guardianship petition.

The Arizona statute on mental health guardianships (Arizona Revised Statutes section 14-5312.01) spells out what is required. In addition to the evidence required to get a guardianship at all, the guardian must file a report from a psychiatrist or psychologist, show that the ward is currently mentally ill, and establish that there is likely to be an actual need for institutionalization within the upcoming year. The authority to make the placement decision expires in one year, whether or not it is used; the guardian must take steps to extend the authority by collecting additional affidavits from a psychiatrist or psychologist, setting a court review time and giving notice to her ward. The process is somewhat automatic once those documents are filed, but there is usually no reminder or assistance from the court or the mental health treatment system, and so a guardian must be diligent to get the authority extended.

Every Arizona guardianship requires that the ward have counsel; if the court appoints an attorney to represent the ward, that appointment may end once the guardianship is established (at least in some Arizona counties — practices differ). But if the guardian has mental health powers, the attorney’s involvement continues indefinitely. That means that the guardian must continue to give notice to (and involve) the attorney for at least as long as the mental health authority continues.

Does that mean that the mental health authority is usually worthless? Not at all. It is not often even available, but in cases where it is a legal possibility, it can shorten the process of getting mental health treatment for a loved one who is decompensating. It also can provide significant comfort to family members who are anxious to have all the tools that might be helpful — even if it does not often get used.

Arizona guardians should know about the mental health treatment limitations and special authority available in some cases. Not very many guardian will need to pursue getting the mental health power added to their guardianships, but for those whose wards are actively mentally ill (and in and out of treatment facilities), the authority can be helpful and comforting.

Can a Person With Dementia Sign Legal Documents?

FEBRUARY 25, 2013 VOLUME 20 NUMBER 8
Let’s get the answer to the question out of the way first, and then we can deal with more nuance. Yes, a person with dementia may be able to sign legal documents.

The inability to sign documents (what is usually known in the law as “incompetence” or, sometimes, “incapacity”) is a factual issue. In order to know whether a person is competent to sign, say, a power of attorney or a will, one must know what understanding the signer had at the time.

Capacity or competence are tested a little differently depending on what documents the person is signing. The most highly-developed law of capacity, unsurprisingly, centers on the level of understanding required to sign a will. That standard is almost universally referred to as “testamentary capacity.” Although precedent for defining testamentary capacity goes back at least to mid-sixteenth century England, the standard is occasionally restated or reformulated.

Arizona’s Supreme Court most recently reviewed testamentary capacity in 1973. In that case the Court described the woman who signed a will as:

“94 years old at the time she executed her will. She had very poor eyesight and was deaf in one ear and partially deaf in the other. As a result of previously broken hips, she used a “walker” to move around. Evidence shows that she was forgetful and did not remember the names of her great grandchildren. She spilled food when she ate and went to the bathroom frequently. She had a short attention span and it was difficult for some people to talk with her.”

The Court goes on to describe the three-part test for capacity to sign a will. A signer must have:

  1. the ability to know the nature and extent of one’s property,
  2. the ability to know the natural objects of one’s bounty, and
  3. the ability to understand the nature of the testamentary act.

Estate of Vermeersch, 109 Ariz. 125 (1973).

The standard of testamentary capacity, then, is quite low. Even people suffering from delusions or hallucinations have been found to have testamentary capacity. In an earlier Arizona Supreme Court case, the signer of a will had deteriorated markedly near the end of her life (and before her will was signed):

“during the last three years of her life she became coarse and profane. The testimony is to the effect that she shrieked and screamed at all hours of the day and night. That she mistreated her brother and cursed him, although he diligently performed his tasks around the house. That she became utterly careless in her dress, took to wearing very little clothing, rarely combed her hair or bathed, and on occasion was indecently exposed in the presence of neighborhood children. She stopped taking care of her house, stopped cooking, and ate from cans, although she fed her animals and chickens better food. She affirmed a belief in the ‘power of thought’ and practiced ‘black magic.’ She thought she could cast spells on people and tried to put a hex on the family next door so they would move out. She sat in the outhouse behind her home and watched the neighbors’ children from a peephole or stalked up and down along the fence between their property, glaring and gesturing to them and sticking out her tongue, in her efforts to get them to leave. She declared that the members of a church on the corner were praying for her to die so that they could acquire her property, when in fact, according to the minister, they wanted to move to another part of town. She was suspicious of people and built a fence around her house to ‘keep my enemies out’ and hung a padlock on the gate. In the last months before her death her conversation became incoherent and her mind wandered, she was forgetful and childish, and she seemed even more quarrelsome and ill-tempered than before.”

Despite that description, the will was found to be valid because the evidence did not specifically point to any relationship between her deteriorating mental condition and the terms of her will. Estate of Stitt, 93 Ariz. 302 (1963).

In yet another Arizona case, the will of a developmentally disabled man was upheld, even though he was said to function at about the mental level of a child of 10 or 12. Estate of Teel, 14 Ariz.App 371 (1971). In that case, the court quoted a standard legal text of the time for the proposition that “testamentary capacity is not the same as the ability to transact ordinary business.” That principle is still true today.

So can a person with dementia sign a will? Yes, so long as he or she can identify family, assets, and the purpose of making a will. A diagnosis of dementia may be evidence of some limitation in those abilities, but many demented individuals — particularly those early in the dementia process — can satisfy those minimal requirements.

What about other legal documents, like contracts, powers of attorney, deeds and the like? The answers will vary depending on the type of document, the circumstances of the signing and the nature and extent of the dementing condition. We’ll talk about those issues in a future installment.

Mental Illness and Guardianship in Arizona

JANUARY 7, 2013 VOLUME 20 NUMBER 1
A recent blog entry from the Special Needs Alliance (two of our lawyers are members) addressed the common problems encountered when family members seek guardianship over someone with a mental illness. The very same day we received a call from a prospective client, asking if he could secure a guardianship over his mentally ill son in order to assure that his son received psychiatric care. In fact, the question comes up regularly, and the unfortunate truth is that guardianship is seldom very helpful. It seems like it should be a good solution; why then is it not?

For several reasons. Let’s start with the limitations on guardians. In Arizona, at least (we suspect but do not know that similar limits will encumber guardians in other states), a guardian may have the legal authority to place a person in a treatment facility, but not the power to chain them down. We mean that figuratively, of course. Mental health patients can leave a residential setting, can resist cooperation and can refuse to participate in treatment. A guardian may have the theoretical authority to return the patient to the care setting, but the cycle of refusal and departure would keep the treatment from being consistent.

Coupled with that is an important reality of modern psychiatric treatment: it is not usually thought of (by the professionals) as keeping the patient safe but as actively improving their mental state. In fact, most psychiatrists we have talked with insist that placement in a treatment setting for more than a few days — a week or two at most — most likely makes treatment less effective rather than more effective. The idea of “asylum” — a safe place for the incurably mentally ill to be housed indefinitely — simply has no role in modern treatment. One might reasonably argue that there should be such a place, but there is not. Put more prosaically, being someone’s guardian will not help create a place for them to stay.

A related problem: our society seriously underfunds mental health care. That means that there may not be an available program — even as an outpatient or outreach program — to treat your family member. Being his or her guardian will not make additional resources available.

Though guardianship may sometimes provide a small marginal benefit, there is another problem: the mentally ill subject of a guardianship proceeding may be very intelligent, very articulate and able to appear quite logical on at least some occasions. That means that it may be uncommonly difficult to “prove” the guardianship is necessary. Furthermore, the mentally ill subject of a guardianship is more likely to be upset, and to become uncooperative, than a person with, say, dementia.

It often seems obvious to family members: our relative is mentally ill, treatment would afford them significant benefit, and they do not understand the value of treatment precisely because of their mental illness. For better or worse (we think “better,” but we appreciate that it gets in the way of the best interests of some patients), our legal system starts from a different place. Guardianship is the state taking away the individual’s powers and transferring them to the guardian; we should not be able to take that step unless we can show that the person is not just mentally ill, but also incapable of providing their own necessities of life.

Put another way: though treatment might make a mentally ill patient happier, more productive, less disruptive and healthier in every way, our legal system will not impose that treatment unless the patient is completely unable to provide for themselves. Or, in a separate but related process, dangerous (or totally disabled).

That’s another reason guardianship so often does not work for the mentally ill. Years ago we (as a society and as a legal system) resolved to establish a “gatekeeper” approach to involuntary mental health treatment. That means that we have delegated the decision-making authority to (in Arizona’s case) medical directors of mental health treatment facilities, and we have given them sharp limits on when they can impose treatment. Generally speaking, the patient must be dangerous (either to themselves or toward others) or seriously disabled by their mental illness. And commitment to involuntary treatment does not usually involve long inpatient stays — typically, involuntary commitments include an outpatient treatment regimen of up to about a year. Guardianship may sometimes actually get in the way of that treatment cycle.

Then there are some of the practical problems arising from the population of patients with mental illness. Often those patients self-medicate — with alcohol or illegal drugs. The commitment process requires that their problem must be primarily mental illness, not drug or alcohol use. The guardianship process requires that the person be unable to make responsible decisions at the time of the hearing, and it is often easy for them to forego drugs or alcohol for the week or two before an examination, and to appear to be much better on the actual hearing date.

Speaking of drugs and alcohol, there is the related problem of treatment for the chronic abuser (who may also have mental illness — or even, after years of abuse, a dementing condition). There is effectively no involuntary treatment option for the chronic alcoholic or drug addict. Addiction programs are premised on the patient’s recognition of a problem, and so guardianship is not an effective way of getting into the treatment system.

For all of those reasons, we often discourage family members from pursuing guardianship over their mentally ill loved ones. That is not to say that it never helps; it sometimes does. But it is not the easy solution that hopeful family members are looking for.

Ward Should Be Allowed To Express Wishes, Hire Counsel

APRIL 11, 2005  VOLUME 12, NUMBER 41

When the legal system takes over decision-making and care of an incapacitated adult, there is a struggle between competing goals. It is important to provide adequate protection and supervision, but it is also important to maintain the ward’s personal autonomy and self-determination. It is often difficult to decide how much latitude to give to an incapacitated ward. Even the court system charged with overseeing that balancing act can sometimes be too restrictive.

Sheri Rosengarten was the subject of a guardianship in Pennsylvania. Before the onset of her mental illness she had established a revocable living trust naming herself and her brother David as co-trustees. Unfortunately, her brother had mismanaged her trust assets after she became incapacitated, and so her personal and legal affairs were in some disarray.

The court appointed a non-family member, lawyer Susan B. Smith, to serve as Ms. Rosengarten’s guardian (of both her person and estate—what would be called a guardian and conservator in Arizona). Thereafter Ms. Smith began to manage Ms. Rosengarten’s personal and financial affairs, although assets in her living trust were being managed by her father as successor trustee.

Because Ms. Rosengarten was in an assisted living facility, her guardian decided it was time to sell her residence and add the proceeds to the assets under management. Ms. Rosengarten objected (as did her father), thinking that she might some day be improved enough to return to her home. In the meantime she thought it made sense to rent the house out—perhaps as a group home that could be tailor-made for her as her condition improved.

Although the court had appointed an attorney to represent Ms. Rosengarten in the guardianship proceeding, she wanted to choose a different attorney and argue against the sale of her home. The court, however, refused to hear from the lawyer she had hired, insisting that the attorney previously appointed could represent her interests. After a brief hearing the judge ordered that Ms. Rosengarten’s home should be sold, and the proceeds delivered to Ms. Smith rather than held in her living trust.

The Pennsylvania Superior Court (that state’s intermediate appellate court) reversed the trial judge’s holdings and remanded the case back to the trial court. Once she had raised the argument that she was no longer incapacitated, said the appellate judges, the first question to be addressed was whether a guardianship was still necessary. At that hearing Ms. Rosengarten should of course be allowed to choose her attorney unless it could be shown that she lacked capacity to even enter into a lawyer-client relationship, and her wishes should be respected to the fullest extent possible. Estate of Rosengarten, March 24, 2005.

Ward Has Burden of Proving That Guardianship Should End

FEBRUARY 16, 2004 VOLUME 11, NUMBER 33

In 1999 the Platte County, Missouri, courts appointed a guardian of the person and conservator of the estate for Linda Werner. Because of her schizophrenia and her resulting difficulty in making responsible decisions the court decided that Janet Waddell, the county’s “public administrator,” should handle Ms. Werner’s personal and financial affairs. By 2002, however, Ms. Werner was doing much better, and she thought it was time to terminate the legal proceedings.

When Ms. Werner asked the court to end the guardianship and conservatorship, the public administrator agreed—partially. Ms. Waddell indicated that she agreed Ms. Werner could handle her own finances. She also agreed that Ms. Werner had improved enough that she should be allowed to vote, and to drive a vehicle. She disagreed, however, with terminating the guardianship altogether.

The Platte County court heard testimony from friends and acquaintances of Ms. Werner, and from a new doctor who had been treating Ms. Werner. The second physician diagnosed her as suffering from depression, rather than the schizophrenia diagnosed at her first hearing by her original doctor.

Several of the witnesses agreed Ms. Werner was doing much better at providing for herself than had been the case at the original hearing. The judge agreed that she should be permitted to take back control of her own finances and that she should be allowed to vote and drive, but continued the appointment of a guardian for all other purposes.

Ms. Werner appealed, arguing that there had been no evidence at the court hearing that she still needed a guardian. The Missouri Court of Appeals upheld the continuation of her guardianship because, said the court, the issue was not whether there was evidence of a continuing need for guardianship—it was whether Ms. Werner had produced sufficient evidence that the guardianship should be terminated.

Because the hearing was on Ms. Werner’s petition to end the guardianship, said the appellate court, she had the burden of proving her case. Although she produced evidence supporting her position, the evidence was not uncontradicted, and the trial judge may have simply not been persuaded. Even if her new physician’s diagnosis of depression was correct, that did not prove that she would continue to do well without a guardian. Ms. Werner’s guardianship continues, though limited. Estate of Werner, February 3, 2004.

Ms. Werner’s case is interesting to Arizona guardianship practitioners for several reasons. In addition to addressing the burden of proof issue, it also introduces the Missouri office of “public administrator,” which is roughly equivalent to Arizona’s “public fiduciary.”

Massachusetts High Court Limits Wards’ Right to Counsel

JULY 28, 2003 VOLUME 11, NUMBER 4

Is one who has been determined legally incapacitated and in need of a guardian able to revisit the court’s determination or challenge her guardian’s actions? Yes, wards may request the restoration of capacity and/or challenge the fitness of the guardian. In at least one state, however, wards are not entitled to legal representation unless a proceeding has been brought to terminate a guardianship or remove a guardian. Guardianship of Lon Hocker, July 10, 2003.

In August 1999, Priscilla Claman petitioned the Barnstable Division of the Family and Probate Court to be appointed permanent guardian of her 88 year-old father, Lon Hocker, Jr., who contested the need for a guardian. The court appointed attorney Kathy Pett Ryman to represent Mr. Hocker. After a trial the court found that Mr. Hocker suffered from multi-infarct dementia and was unable to care for himself by reason of mental illness. Ms. Claman was appointed to serve as guardian. The court admonished family members not to interfere with the guardian’s ability to implement a treatment plan for Mr. Hocker.

Over a year later the court vacated Ms. Ryman’s appointment as Mr. Hocker’s attorney. The next day, Ms. Ryman entered a notice of appearance on his behalf with no other pleading—she did not seek to remove the guardian or end the guardianship. Mr. Hocker’s guardian moved to strike the notice of appearance.

Ms. Ryman and the ward’s son opposed the guardian’s motion. After a hearing the court made note of Mr. Hocker’s diminished level of cognitive function and granted the guardian’s motion to prohibit Mr. Hocker’s attorney from appearing on his behalf. The judge, who seemed to think that the ward’s son was just trying to keep tabs on his sister, noted that any concerns about the guardian’s fitness could be addressed in an action to remove her pursuant to state statute. Ms. Ryman and the ward’s son appealed this ruling.

The Massachusetts high Court ruled that apart from an adversarial action “due process does not require that a ward be able to consult with counsel about his guardianship.” The Court emphasized, however, that the ward and his family members “remain free to challenge Claman’s fitness as guardian or the ward’s continued need for a permanent guardian …” Left unanswered was how he might accomplish that task without the aid of counsel.

In Arizona attorneys for wards (especially those with mental health issues) often have extended appointments. It is unlikely that a lawyer’s attempt to appear for even an incapacitated ward would be rejected.

Wills Usually Are Valid, and Not All Family Influence is “Undue”

JUNE 23, 2003 VOLUME 10, NUMBER 51

Occasionally a successful and colorful will contest is profiled in Elder Law Issues. EL Issues reported in 1996 that Dorothy Killen’s will was deemed invalid in an Arizona court due to Ms. Killen’s “’insane delusions’” about her truly kind relatives she believed to be Mafia killers. (May 27, 1996) And, last year EL Issues described how the Mississippi attorney who prepared “Doc” Evans’ will could offer no testimony about his client’s wishes or capacity since the attorney had never met his client. “Doc” Evans’ will was held to be invalid because it appeared that he was unduly influenced by a friend involved in his business affairs. (Dec. 2, 2002)

The Wisconsin will contest of Horlacher v. Drexler is far more typical of the majority of will contests — it was unsuccessful and fueled by dark family dysfunction.

Zoura Drexler of Walworth County, Wisconsin, properly executed a will that left her entire estate to one of her children and specifically excluded her only other child. The trial court found that Mrs. Drexler had mental capacity and that she had not been subjected to undue influence when she signed the will.

Barbara Horlacher, the excluded child, appealed the trial court’s ruling regarding her mother’s capacity. Mrs. Drexler’s physicians, the attorney who drafted her will, a neighbor and her cleaning lady had all testified that Mrs. Drexler was competent to sign her will.

The only evidence that Barbara presented at trial was the testimony of a medical expert who reviewed the medical records but who had never examined, treated or met Mrs. Drexler. Barbara also challenged the trial court’s finding that Albert, the son who inherited the estate, had not exercised undue influence over his mother. The appellate court affirmed the trial court’s finding that although Albert had a “confidential relationship” with his mother based on the fact that he was named as agent in her financial power of attorney, he used the power “very, very carefully, very scrupulously, very infrequently and for very minor matters.” Thus, no suspicious circumstances surrounded the confidential relationship between Albert and his mother. Although Barbara attempted to introduce into evidence Albert’s psychiatric treatment records, this evidence was deemed inadmissible for lack of relevance. Wisconsin Court of Appeals, District II, May 7, 2003.

Horlacher v. Drexler reminds us that family members influence each other frequently, and that not all influence is undue or “overpowering.” This scenario likely would have led to the same result in Arizona and most other states.

Juvenile Court Appointment of Guardian Ad Litem Reversed

DECEMBER 23, 2002 VOLUME 10, NUMBER 25

When someone appearing in a court proceeding is unable to make decisions for himself or herself, the court may sometimes appoint a guardian ad litem. Lawyers usually shorten the appointee’s title to GAL. The need for a GAL and the GAL’s proper role have been topics of controversy in a number of cases.

Most jurisdictions draw a clear distinction between a GAL (who may or may not be a lawyer, depending on the court’s wishes and local laws and practice) and an attorney for the ward, minor or disabled person. Generally, the GAL’s role is to make decisions for the person. An attorney’s role, on the other hand, would be to represent the client, to counsel him or her, and to assist in producing witnesses and evidence if he or she wishes to take a particular position.

GALs are most often appointed in guardianship and conservatorship proceedings. In civil litigation involving a minor or disabled adult, or even in divorce proceedings where one spouse is mentally disabled, a GAL may be appointed to make decisions about the course of the case.

Because courts tend to be paternalistic toward children and the mentally disabled, the appointment of a GAL may be almost routine in many types of cases. As a recent California case pointed out, however, a judge needs to follow proper procedures even when taking steps to protect a litigant.

Kim S. is the grandmother of four-year-old Joann E. (the court does not provide last names in this juvenile proceeding) and her guardian. When the state decided that Kim’s mental illness made it impossible for her to properly raise Joann, a juvenile proceeding was initiated to remove Joann.

Because of Kim’s obvious mental illness, the juvenile judge decided to appoint a GAL to make decisions for her in connection with the juvenile proceedings. The appointment was made without a hearing, any testimony or an opportunity for Kim to be heard as to whether she needed a GAL.

After a different judge removed Joann from Kim’s care Kim appealed. One of her arguments was that the judge had no right to appoint a GAL without first holding a hearing and giving her a chance to object.

The California Court of Appeal agreed. Because it appeared that the judge simply decided, based on the written reports, that someone other than Kim should be in charge of her case, Kim’s due process rights were violated. Since Kim’s rights were abridged at the outset, the entire process thereafter was suspect, and the trial court must restart the juvenile proceedings. In re Joann E., December 16, 2002.

Guardian Ad Litem Appointed For Incapacitated Litigant

MAY 13, 2002 VOLUME 9, NUMBER 46

Ralph Blakely, Jr., signed himself in to a mental health treatment facility for the first time in 1972. Despite treatment he received from time to time over the next quarter century, he continued to suffer from delusions, hallucinations and impaired memory.

Mr. Blakely married in 1973. He and his wife Yolanda owned various businesses over the years, including a dairy farm, an orchard, and other properties. He apparently continued to live a tumultuous life; by 1995 the couple had been involved in over 60 lawsuits. Partly to protect their assets from possible creditors the Blakelys created a trust to hold title to most of their property.

In 1995 Mr. Blakely’s legal troubles began to escalate. First his wife filed for a dissolution of their marriage. A year later the trustee of the trust which the couple had created asked the court to compel Mrs. Blakely to account for her use of trust assets; she argued that Mr. Blakely, his father and son were liable for any shortages.

Mr. Blakely elected to represent himself in the trust and dissolution actions. About three weeks before the trust trial, however, he was arrested for kidnapping his wife and son, and he went to jail pending a trial on those charges.

The attorneys appointed to represent Mr. Blakely in his criminal trial asked the court in the trust and dissolution actions to appoint a guardian ad litem (usually referred to as a “GAL”) in those proceedings. The GAL would be able, they argued, to determine what would be in Mr. Blakely’s best interests, and to manage the litigation without exposing him to further criminal problems. Although the court initially denied the request a local attorney was ultimately appointed to serve as guardian ad litem.

The trust case was the first of Mr. Blakely’s three legal problems to be resolved. His GAL helped negotiate a resolution of the claims and counterclaims, and the court approved the settlement.

Next Mr. Blakely faced the criminal charges arising from his having kidnapped his wife and son. A jury heard that matter and decided that his mental condition was not so serious as to prevent him from participating in own trial. Armed with that finding Mr. Blakely asked that his GAL be dismissed in the trust and dissolution matters so that he could once again represent himself. Those requests were denied and he appealed.

The Washington Court of Appeals upheld the lower court’s determination that Mr. Blakely needed a GAL to make decisions in his best interests. Court rules allow for appointment of a GAL when a litigant is unable to understand the significance of legal proceedings. A full hearing on the request was not required since he did not object until after the appointment. Marriage of Blakely and Blakely, April 25, 2002.

Lawyer Must Follow Impaired Client’s Wishes In Most Cases

JULY 9, 2001 VOLUME 9, NUMBER 2

Lawyers who represent mentally impaired clients often wonder: is the lawyer’s duty to advocate the client’s wishes, no matter how peculiar, or to act in the client’s best interests? That was the dilemma facing New Hampshire attorney Tony Soltani after his client was committed to a mental hospital.

Richard A. (his full name is withheld in the official court proceedings) was the subject of a commitment proceeding. Evidence at his trial indicated that he was severely psychotic. He believed that the FBI had implanted monitors and transmitters in his body, and he threatened to swallow coins in order to force medical personnel to x-ray him—which he hoped would reveal the implants. More distressingly, he barricaded himself in a room with a hatchet and refused treatment.

Richard A. was represented by a court-appointed attorney. The attorney made his best arguments, but the evidence was strong and the trial judge committed Richard A. to the New Hampshire Hospital for up to one year of treatment. Richard A. instructed his lawyer to appeal.

The lawyer’s dilemma was immediately clear. In his view there was no basis for an appeal, and lawyers’ ethical rules prohibit filing frivolous actions. The lawyer could not follow both his client’s wishes and the rules governing the profession.

A similar problem often arises in criminal cases when a defendant has been convicted and insists on an appeal. In a 1967 case arising in California the U.S. Supreme Court decided that the defendant’s right to an appeal was more important than the lawyer’s ethical limitations, and authorized the filing of a so-called “Anders” brief—in which the lawyer lists all the possible arguments the defendant might have made without arguing that the appeal should be granted. Richard A.’s attorney suggested that maybe he should be directed to take a similar approach.

The New Hampshire Supreme Court decided that Richard A.’s attorney must first try to dissuade him from appealing his commitment. If that is unsuccessful, however, the lawyer is permitted to file an appeal without arguing for reversal, similar to the criminal rules governing Anders briefs. The Court noted that it might summarily dismiss any appeal if it decided the appeal lacked merit. In re Richard A., April 18, 2001.

The case of Richard A. points to ethical problems faced by lawyers for the mentally impaired every day. It can be difficult to balance the client’s wishes with his or her legal interests, and following instructions can sometimes be harmful to the client. Generally speaking, the lawyer’s duty is to represent the client’s wishes. The lawyer’s job can be challenging in such a case; Richard A.’s case at least recognizes that challenge, even if does not resolve it.

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