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



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See Beverley's Case, 76 Eng. Rep. at 1124.

  • See Brakel & Rock, supra note 12, at 3. “There is no indication that this care ever constituted a drain on the king's treasury.” Id.

  • See id.

  • See id. at 4; see also PERLIN, supra note 93, at 35.


    often found lunacy even if idiocy was more appropriate.100 Lunatics were committed to the care of a friend who received an allowance for the care.101

    Alternatively, the petitioner could request lasting confinement of the non compos mentis, without benefit of a jury trial, if the non compos mentis had no money, the condition was permanent, and the petitioner could not afford the additional expense.102 The alternative solution could explain later development of detention procedures.103 One owning property could afford the expenses incurred in the necessary inquiry to determine his sanity.104 The inquiry assured that the applicant's affairs were properly administered and that the proceeds from his holdings paid the administration and mainte- nance costs.105 On the other hand, less wealthy individuals did not require an administrator for their affairs, and no method existed to compensate the nearest relative for their support.106

    Since the thirteenth century, the Crown's exercise of its royal prerogative relating to subjects unable to protect themselves was not so benevolent. Although the idiot could expect the Crown to protect both his or her person and property from exploitation, no duty ex- tended to maintain the idiot's dependents.107 The more attractive revenue-raising dimension diluted the protective welfare intent and
    


      1. See Brakel & Rock, supra note 12, at 3 (citing 1 WILLIAM BLACKSTONE, COM-

    MENTARIES 303–07 (9th ed. 1783)).

      1. See PERLIN, supra note 93, at 34–35. Typically, the chancellor named the in- competent's heir as manager of the estate because it was in the heir's interest to prop- erly manage the estate; however, “to prevent sinister practices,” the heir was not given the physical custody of the incompetent. See 1 WILLIAM BLACKSTONE, COMMENTARIES 295 (9th ed. 1783); see also Brakel & Rock, supra note 12, at 3. The heir was responsible to the Court of Chancery, to the recovered lunatic, or to his administrator. See 1 WILLIAM BLACKSTONE, COMMENTARIES 295 (1st Eng. ed. 1966); see also Brakel & Rock, supra note 12, at 3–4. These practices gradually developed into a set of customs, rules, and stan- dards to manage the lunatic's property. See id. at 4.

      2. See Brakel & Rock, supra note 12, at 4 (citing 1 WILLIAM BLACKSTONE, COM- MENTARIES 305 (9th ed. 1783)); see also State ex rel. Hawks v. Lazaro, 202 S.E.2d 109, 117–20 (W. Va. 1974) (pointing out that parens patriae authority is frequently not benev- olently motivated and the doctrine has been “suspect from the earliest times”); PERLIN, supra note 93, at 34–35 & n.24.

      3. See Brakel & Rock, supra note 12, at 4.

      4. See id.; see also 1 WILLIAM BLACKSTONE, COMMENTARIES 292, 294 (9th ed. 1783).

      5. See Brakel & Rock, supra note 12, at 4.

      6. See id.

      7. See Carney, supra note 13, at 205–06; see also Neugebauer, supra note 13, at 160.


    the Crown received and retained revenues and profits generated by property owned by retarded, but not mentally ill, individuals.108 The non compos mentis, however, fared better than the idiot because the Crown did not claim any revenue of the estate, yet was obligated to maintain and protect the person and his family according to his degree and station.109

    In later centuries, the royal benevolent prerogative has been modified and adapted.110 Instituted before 1540, and surviving until today, the Crown's responsibility was discharged.111 Agencies or private citizens appointed as guardians or curators, and private committees of the estate or of the person, depleted the estate and discarded the person.112 When the sixteenth century Court of Awards and Liveries administration fell out of favor, jurisdiction passed first to the Court of Chancery, and eventually to the admin- istrative adjunct of the court, the master of lunacy, and the Office of Public Trustee.113

    In the Author's view, the English legal process became subject to all of the perversities previously noted in the history of other countries. England appeared to condemn idiots and imbeciles to its perversity. It was in the Crown's self-interest and on those who legislatively controlled the citizens to mismanage guardianship.114 The English process, condemned as counter-productive, rejected alternatives that could better serve the English citizens in favor of policies implemented and driven by a group or by the bureaucrats. Like Greece and Rome, guardianship in the British Empire was misgoverned a march of folly.

    




      1. See Carney, supra note 13, at 206.

      2. See Neugebauer, supra note 13, at 160.

      3. See Carney, supra note 13, at 206.

      4. See id.

      5. See id. See generally N. ARTHUR HEYWOOD ET AL., HEYWOOD & MASSEY'S LU- NACY PRACTICE (4th ed. 1911) (detailing the inquisition procedures, powers, and respon- sibilities of a committee of the person). Similar models have been implemented through recent statutory changes in several states. See, e.g., DEL. CODE ANN. tit. 12, § 3991-97 (1995); FLA. STAT. § 744.702 (1995); N.C. GEN. STAT. § 35A-1270-1273 (1995).

      6. See Carney, supra note 13, at 206–07. This is akin to state public guardianship agencies created by statute in many states and operated from central administrative offices. See, e.g., ALASKA STAT. § 44.21.410 (Michie 1993); 755 ILL. COMP. STAT. ANN. 5/11a-5 (West 1993).

      7. For a discussion of the English government's self-interest in guardianship man- agement, see supra notes 76–114 and accompanying text.


    4. American Misgovernment

    American guardianship is tracked in three stages: (A) from Co- lonial America to the mid-1800s, (B) from the mid-1800s to the early-1960s; and (C) from the early-1960s to the present. American governance primarily echoes detention and commitment laws affect- ing mentally ill and deficient citizens. State detention and commit- ment laws evolved as advocates impressed on society due process rights for detainees. The process and changes of these laws were the frontier for guardianship advocates to observe and follow.


        1. Colonial America to the Mid-1800s

    One fact that remains consistent from Colonial America to pres- ent day is the unpleasant prospect of supporting an indigent incompetent.115 Colonial America expected families, “the primary social unit,” to care for their own.116 Secondary communal facilities cared for the orphaned and the friendless.117 Thus, the durably un- employed, mentally disabled, homeless person became a transient “monolithic mass,” drifting from town to town to survive.118

    Early accounts of non-judicial community aid to the mentally disabled occurred in Pennsylvania and Massachusetts, but the goal was aid to the family, not to the disabled person.119 However, when derangement and violence were apparent, community action changed to judicial action and mentally disabled persons were com- mitted without objection.120

    




      1. See Brakel & Rock, supra note 12, at 4.

      2. See id.

      3. See id.

      4. See id. A drifter was so labeled whether mentally or physically disabled, or simply lazy. See id. Townspeople feared that they would have to support this monolithic mass, and thus made no attempt to assist. See id. The Protestant work ethic, which equated work and industry to morality, aimed the sanction of the laws at these indigent, mentally disabled people who underwent ridicule and whippings. See id. This Author asks: “Is this familiar?”

      5. See id. That text described separate accounts in Pennsylvania and Massachu- setts communities, where community support aided a father and brother, respectively, building small houses to care for the mentally disabled family member. See id. The Mas- sachusetts community also provided maintenance expenses. See id. The two people were poor and “bereft” of natural senses. See id.

      6. See Brakel & Rock, supra note 12, at 4–5. A 1788 New York statute allowed justices to safely lock up the “furiously mad” and dangerous, but the statute was intend- ed for violent persons. See id. at 6. See generally Hugh Alan Ross, Commitment of the


    Detention for the nonviolent presented a legal or philosophical quandry. Application of the parens patriae doctrine resolved the problem by granting states the power to act and protect the welfare of mentally ill persons.121 Family members usually initiated deten- tion for other family members succumbing to lunacy.122 Legislative direction under the parens patriae doctrine emerged as the respon- sible way America dealt with mentally incompetent persons, supple- mented with the family's immediate obligation.123 The existing stat- utes defined the lunatics, the furiously mad, or those extremely “dis- ordered in their senses.”124 The law left exceptions for the family or the Chancellor to provide for lunatics under separate care and pro- tection, representing legislative use of asylums primarily for violent persons while others were cared for privately.125
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