Guardianship folly: the misgovernment of parens patriae and the forecast of its crumbling linkage to unprotected older americans in the



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Even with the Roman Empire's elaborate system, the tutors and the curators seemingly exercised their powers in ways that more often served their own interests than those of their incompetent or disabled wards. In the Author's opinion, the Roman legal process condemned citizens sui juris to its perversity. The Roman oligarchy's misgovernment of guardianship, based on the self interests of those who controlled the citizens, was condemned as counter-productive at the time. Yet, available alternatives that could better serve Roman citizens were foregone in favor of policies driven by a group or by bureaucrats. Like the Greeks, the Roman Empire misgoverned guardianship in a march of folly.
3. English Misgovernment

Guardianship arrived in England as a result of the Western empire's decay during the fifth century. After that era, Western Europeans followed the law of the Germanic tribes, while Eastern Europe followed Roman law.76 Spain and France followed the Visigothic Code (the “Code”), which was drafted between 466 and 485 A.D. and patterned after Roman law.77 The Code prohibited any person uninterruptedly insane from infancy or thereafter from testi- fying or entering into a valid contract.78

The Middle Ages returned legal treatment of mentally disabled individuals to the religious conception of demon possession and exor- cism.79 The elaborate ceremonies and antidotes were more inhu- mane and tortuous than those of earlier periods.80 Personal welfare






  1. See id.

74. See id. at 156, 157 n.5.

  1. See BUCKLAND, supra note 31, at 156.

  2. See Brakel & Rock, supra note 12, at 2.

  3. See id. at 2 n.9.

  4. See id. at 2 (citing The Visigothic Code 2.5.10, in SCOTT, THE VISIGOTHIC CODE 67 (1910)).

  5. See id. at 2; see also Peter M. Horstman, Protective Services for the Elderly: The Limits of Parens Patriae, 40 MO. L. REV. 215, 220 (1975) (stating that mentally dis- abled persons were often treated as social outcasts, and driven out of the city).

  6. See Brakel & Rock, supra note 12, at 2.


received little or no attention, a mimic of Greek and Roman periods, while the laws emphasized control and protection of the property.81

Between 1255 and 1290 A.D., England's concept of guardianship began with the enactment of the statute de Praerogativa Regis,82 which gave the king power to protect his subjects, and their lands and goods.83 The king was further bound to care for imbeciles and others lacking understanding and ability to care for themselves.84

The English law divided individuals with mental disabilities into two classes: (1) the idiot or natural fool, who lacked understand- ing from birth, and (2) the lunatic or frail of wit, who at one time had understanding but lost it.85 The king had custody of the idiot's land and could retain the profits from the land after providing the idiot with necessaries.86 After the idiot's death, the land returned to the “right heirs.”87 The king held the lunatic's land and applied all of the land's profits to maintain the mentally ill persons and their households.88 Excess profits were returned to the lunatic once he or she regained capacity.89 Thus, guardians profited from managing an idiot's property, but no profit resulted from the duty to manage a lunatic's property.90






  1. See id. at 2. Although medieval England delegated guardianship to the lord of the manor, whose duties included proprietary and personal interests, the main justifica- tion was proprietary so that the mentally disabled neither became a public burden nor wasted their assets. See id. at 250; see also ALLEN, supra note 21, at 3 (stating that the laws primarily protected property, assuming that few necessary guidelines regarding duties toward the mentally disabled's person because the guardian would have the per- son's best interest at heart); Barbara A. Cohen et al., Tailoring Guardianship to the Needs of the Mentally Handicapped Citizens, 6 U. MD. L.F. 91, 92 (1976) (pointing out that Roman law emphasized protection of the mentally disabled's property over protec- tion of the person); Horstman, supra note 79, at 219–20 (stating that the mentally dis- abled ward's property, but not person, has always been cared for).

  2. See Brakel & Rock, supra note 12, at 2.

  3. See id.

  4. See id.

  5. See id.

  6. See id.

  7. See id. The term “right heirs” distinguished preferred heirs, who had priority in the estate, from the general heirs who would inherit if the preferred heir or his line failed. See BLACK'S LAW DICTIONARY 724 (6th ed. 1990).

  8. See Brakel & Rock, supra note 12, at 2.

  9. See id.

  10. See Brakel & Rock, supra note 12, at 2; see also ALLEN, supra note 21, at 2 (describing the lunatic's guardianship as “a novel and noteworthy thing” because it actu- ally considered the lunatic's interests).


Beverley's Case,91 decided in 1603, first expounded on and ex- plained England's development of insanity law.92 The renowned Lord Coke explained that acts performed by a person non compos mentis93 in a court of record should bind him and his heirs forever, while acts done outside a court of record may bind for his life or forever.94 In addition, the punishment of the non compos mentis individual could not be an example to others.95 Lord Coke also de- termined that the king's custody over the afflicted's body extended to their lands.96 However, protection of the afflicted's person oc- curred only if there were available proceeds from the lands to care for his or her needs.97

Under the process, the chancellor, upon petition, issued a writ de idiota inquirendo, which involved a jury trial similar to the lunacy writ and procedure.98 In the interim, relatives cared for the non compos mentis.99 To avoid heavy exaction by the king, juries

91. 76 Eng. Rep. 1118 (K.B. 1603).

  1. See Brakel & Rock, supra note 12, at 2.

  2. See Beverley's Case, 76 Eng. Rep. at 1121. Four types of persons included in the generic term non compos mentis were: (1) the idiot or natural fool; (2) those who once had sound memory, but lost it “by the visitation of God”; (3) the lunatic, who had periods of lucidity and periods of lunacy; and (4) those who lack reason due to their own actions, such as the drunk. Id. at 1122; see also Brakel & Rock, supra note 12, at 3. These categories of non compos mentis recognized by Lord Coke represent a significant effort by the common law to make clinical distinctions among handicap statuses of the mentally disabled. See MICHAEL L. PERLIN, MENTAL DISABILITY LAW — CIVIL AND CRIMI- NAL 34 (1989).

  3. See Beverley's Case, 76 Eng. Rep. at 1121; see also Brakel & Rock, supra note 12, at 3.

  4. See Beverley's Case, 76 Eng. Rep. at 1124. The reasoning behind non-punish- ment of the non compos mentis for felony, murder, or petit treason was the person's lack of ability to form intent. See id. at 1121. However, killing the King, high treason, was punishable. See id. Lord Coke further compared civil and common law that protected the idiot and his inheritance. See id. at 1122–27; see also Brakel & Rock, supra note 12, at

  1. Common law did not contain civil law's provision that all acts performed by a person non compos mentis without the accord of his tutor were void. See Brakel & Rock, supra note 12, at 3. The law of England provided a tutor in the form of the King. See id. The King could void any transfer of property made by the idiot, including gifts or transfers made by the idiot before he was adjudged incompetent. See id. The King also protected the lunatics, who became non compos mentis later in life, could void the lunatic's trans- fers made during non-lucid moments, and remained accountable to the lunatic when they were lucid. See id.

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