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



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Similar to current guardianship laws, the procedures for com- mitment non compos mentis were accomplished on one physician's certification, or a justice of the peace warrant.126 Those charged non compos mentis sometimes had a right to a jury, adequate notice as necessary, and the opportunity to examine witnesses and be exam- ined as in any other suit.127


        1. The Mid-Nineteenth Century

The concept of hospitals to serve both the mentally ill and poor sick citizens developed in the late-eighteenth century. In the late- 1700s, Virginia erected the first hospital exclusively devoted to the mentally disabled.128 The Williamsburg hospital remained the on

Mentally Ill: Problems of Law and Policy, 57 MICH. L. REV. 945, 955 (1959) (relating a comprehensive discussion of the commitment process and policies).

    1. See PERLIN, supra note 93, at 38 n.42. Before the creation of institutions, colo- nial laws focused on the parens patriae doctrine. A 1702 Connecticut act provided for the care of those incapable of caring for themselves. The incompetent's hometown or town of current domicile was charged with overseeing the care and safety of the incapacitated incompetent person. See id.

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

    3. See id. at 6.

    4. See id. supra note 120 and accompanying text (regarding New York laws of 1788).

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

    6. See id.

    7. See id.; see also Stafford v. Stafford, 1 Mart. 551, 552–53 (La. 1823) (holding that under civil law one must be provided notice and opportunity to cross examine be- fore being deprived of the right to administer his own affairs).

    8. See PERLIN, supra note 93, at 38. However, 22 years prior, a Philadelphia state


ly such facility until 1824, when Kentucky established the Eastern Lunatic Asylum.129

In addition to statutes and procedures providing a semblance of due process, the common law writ of habeas corpus tested the con- finement and detention of mentally incompetent persons.130 For example, in 1845, Josiah Oakes sought his release from a Massa- chusetts asylum alleging his family had him committed illegally.131 In Oakes, the court acknowledged the existence of private institu- tions and the courts' necessary use of them, particularly for restrain- ing insane persons exhibiting danger to themselves or others.132 However, the court also recognized that necessity creates a limita- tion upon the law and concluded that the proper limitation is re- straint only as long as necessary.133 The Oakes decision identified elements necessary to determine the propriety of detention.134 It established more precise common-law rules reflecting advances in medical science, as well as society's view of mental disability.135

History is mirrored through the judicial decisions and the work of noted physicians affecting mentally disabled persons.136 By the turn of the last century, the development of law affecting the rights of the mentally disabled depended on (1) medical knowledge of the cause, care, and treatment needed by the mentally disabled, (2)

hospital had accommodations specifically for mental patients. See id.; see also Brakel & Rock, supra note 12, at 5.

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

    2. See id. at 6; see also Perlin, supra note 93, at 44.

    3. Matter of Josiah Oakes, 8 Law Rep. 123 (Mass. 1845); see also Brakel & Rock, supra note 12, at 6–7; PERLIN, supra note 93, at 44. Oakes was early America's most important civil commitment case. See PERLIN, supra note 93, at 44. Oakes, an elderly man, became engaged to a young woman of questionable character shortly after his wife's death. See 8 Law Rep. at 123; see also Brakel & Rock, supra note 12, at 4. One hundred thirty years later, in 1971, Kenneth Donaldson sought release from the Chattahoochee Asylum in Florida on the ground that he had been illegally committed by his family and detained for more than 14 years by the State. See O'Connor v. Donaldson, 422 U.S. 563, 564–65 (1974). O'Connor clearly illustrates how mismanage- ment of commitment and guardianship truly spans the centuries.

    4. See Oakes, 8 Law Rep. at 123.

    5. See id. at 125.

    6. See Brakel & Rock, supra note 12, at 7.

    7. See id.

    8. Mrs. E.P.W. Packard and Miss Dorothea Lynde Dix are cited for their heroic endeavors to bring to the attention of the public a concern for those involuntarily committed, and for attempting to create more appropriate hospitals for the mentally ill. See Brakel & Rock, supra note 12, at 7–8; see also PERLIN, supra note 93, at 43 nn.69–70.


acknowledgment by politically organized communities of the respon- sibility of care for the mentally disabled, and (3) the legal profession's awareness of social remedies.137


        1. The Mid-Twentieth Century

American misgovernment of guardianship remained invisible during the decades between the end of the nineteenth century and the middle of the twentieth century. Institutions for the mentally ill and the developmentally disabled were numerous and flourished country-wide. Only a minimal effort was required to commit the mentally ill and disabled.138 As a result, the plight of these individu- als was kept from the sight of the general public. The parens patri- ae, with all its previously discussed weaknesses, flourished as well. Change did not begin to occur until the 1960s.

By the 1960s, the commitment process bound both the mentally ill and the incapacitated. A product of the popularity of institutional confinement and commitment enacted during the latter part of the nineteenth century, the process constituted the basic legislative pattern enforced at the time.139 An understanding of the 1990s guardianship movement begins with a review of the 1960s commit- ment process movement. A basic analysis of due process for people with mental disabilities at that time begins with a review of proce- dural and substantive rights in involuntary civil commitment hear- ings.140 Three cases mark the beginning: Jackson v. Indiana,141 Lessard v. Schmidt,142 and O'Connor v. Donaldson.143

In Jackson v. Indiana,144 the United States Supreme Court held



    1. See Brakel & Rock, supra note 12, at 8. The historical records cited in the authorities used for this work demonstrate that what was true for the Greeks over 2000 years ago is true for the Americans today.

    2. If you build it, they will come. If they don't, then commit them. In this Author's opinion, commitment of the mentally ill is the beginning of “the manufacture of madness.” See generally THOMAS S. SZASZ, THE MANUFACTURE OF MADNESS (1970).

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

    4. See generally A. FRANK JOHNS, Guardianship and Conservatorship, in ADVISING THE ELDERLY CLIENT § 34 (Louis A. Mezzullo & Mark Woolpert eds., 1994) (The Johns text has been revised, updated, and modified to fit the context of this Article.); PERLIN, supra note 93 (Perlin's text provides a comprehensive analysis of involuntary civil commitment and substantive rights).

141. 406 U.S. 715 (1972).

142. 349 F. Supp. 1078 (E.D. Wis. 1972).

143. 422 U.S. 563 (1975).

144. 406 U.S. 715 (1972).
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