(THE ARC)
(EXPLORING THE COMPETENCY DILEMMA FACING PEOPLE WITH INTELLECTUAL AND DEVELOPMENTAL DISABILITIES IN THE CRIMINAL JUSTICE SYSTEM)
(09/23/16)
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HELLO, HELLO, EVERYONE, WELCOME TO THE ARC NATIONAL CENTER ON CRIMINAL JUSTICE AND DISABILITY WEBINAR. MY NAME IS ASHLEY BROMPTON AND I'M THE CRIMINAL JUSTICE FELLOW AT NCCJD. BEFORE WE BEGIN OUR PRESENTATION, I WOULD LIKE TO COVER A FEW BASICS ESPECIALLY FOR THOSE OF YOU WHO ARE NEW TO WEBEX.
PARTICIPANTS ARE ON A LISTEN-ONLY MODE.
WE WOULD BE MORE THAN HAPPY TO HELP YOU.
AT THE END OF THE SESSION, THERE WILL BE TIME FOR QUESTIONS, THROUGHOUT THE PRESENTATION YOU CAN EITHER POST QUESTIONS IN THE Q&A SECTION OR CHAT BOX. YOU DON'T WANT YOUR NAME SHARED, TYPE PRIVATE BEFORE YOUR QUESTION.
YOU CAN E-MAIL QUESTION TO .
IF WE DON'T HAVE TIME TO GET TO YOUR QUESTION, WE WILL FOLLOW UP AFTERWARD.
WE HAVE ONE FINAL REQUEST.
A SHORT SURVEY WILL POP UP AFTER YOU CLOSE WEBEX.
PLEASE TAKE FIVE MINUTES TO COMPLETE IT.
WILL ENSURE THAT YOU ARE SATISFIED WITH THIS AND FUTURE WEBINARS, THIS WEBINAR IS FUNDED BY THE UNITED STATES DEPARTMENT OF JUSTICE.
THANK YOU FOR YOUR PARTICIPATION.
THANK YOU FOR OUR PRESENTERS TO TAKING THE TIME TO BE HERE WITH US TODAY.
I WOULD LIKE TO NOW INTRODUCE YOU TO THE NEW INCOMING CRIMINAL JUSTICE FELLOW ARIEL SIMMS.
SHE COMPLETED DEGREE AT HARVARD LAW SCHOOL.
PRIOR TO LAW SCHOOL ARIEL SPENT TWO YEARS WORKING AS A MENTAL HEALTH COUNSELOR, AFTER THAT EXPERIENCE SHE DECIDED TO BECOME A DISABILITY AND HUMAN'S RIGHT ADVOCATE SPECIALLY ON BEHALF OF THOSE LIVING WITH MENTAL DISABILITIES, THROUGHOUT HER TIME IN LAW SCHOOL, ARIEL WORKED ON DISABILITY RIGHTS ISSUES BOTH IN THE UNITED STATES AND ABROAD INCLUDING HEALTHCARE POLICY, HUMAN RIGHTS AND CRIMINAL JUSTICE REFORM.
I'M NOT GOING TO TURN IT OVER TO ARIEL TO BEGIN THE PRESENTATION.
> THANKS SO MUCH, ASHLEY, I WANT TO TAKE A COUPLE OF MINUTES TO DISCUSS TWO TERMS THAT ARE OFTEN CONFUSED, CAPACITY AND COMPETENCY.
CAPACITY IS A MUCH BROADER TERM AND GENERALLY DESCRIBES PEOPLE'S ABILITIES TO UNDERSTAND ACTIONS AT A PARTICULAR MOMENT IN TIME.
IT IS ALSO A VERY FLUID CONCEPT AND NOT ONLY VARIES FROM PERSON TO PERSON BUT ALSO DECISION TO DECISION.
FOR EXAMPLE, IT COULD BE SAID THAT SOMEONE HAS CAPACITY TO WORK BUT NOT TO MANAGE HIS OR HER FINANCIAL AFFAIRS.
ON THE OTHER HAND, COMPETENCY IS A PURELY LEGAL CONCEPT THAT ASKS THE QUESTION WHETHER SOMEONE HAS THE CAPACITY TO UNDERSTANDING AT VARIOUS POINTS IN THE LEGAL PROCESS.
FOR INSTANCE, THERE'S A GENERAL COMPETENCY TO STAND TRIAL WHICH BOB WILL BE SPEAKING ABOUT IN JUST A MOMENT, BUT ALSO COMPETENCY TO PLEA GUILTY OR WAIVE ONE'S MIRANDA RIGHTS, FOR THOSE WHO ARE VISUALLY YOU CAN SEE IN THE DIAGRAM THAT THAT IT'S ENCOMPASSED WITHIN THE BROADER CONCEPT OF CAPACITY AND WITH THAT BRIEF INTRODUCTION, I WOULD LIKE TO INTRODUCE OUR FIRST SPEAKER.
SO BOB IS AN ATTORNEY AT THE SENATE REPUBLIC PRESENTATION AND LAW FIRM IN MASSACHUSETTS AND WASHINGTON, D.C.
HE HAS REPRESENTED PEOPLE WITH DISABILITIES SINCE 1973 WHEN HE GRADUATED FROM BOSTON COLLEGE LAW SCHOOL.
HIS LITIGATED AND ARGUED APPEALS IN PRISON, GUARDIANSHIP, FAIR HOUSING, RIGHT TO TREATMENT AND RIGHT TO COMMUNITY SERVICES CASES.
BOB HAS SERVED ON THE FACULTY OF WESTERN NEW ENGLAND UNIVERSITY OF LAW SCHOOL AND SMITH COLLEGE LAW SCHOOL FOR SOCIAL WORK.
HE'S ALSO PUBLISHED A BOOK AND NUMEROUS ARTICLES AND BOOK CHAPTERS ABOUT DISABILITY WITH LAW.
WITH THAT, I'M GOING TO TURN IT OVER TO YOU, BOB, AND YOU CAN GO AHEAD AND TURN ON YOUR VIDEO AND UNMUTE YOURSELF AND TELL US A LITTLE BIT MORE.
> THANK YOU VERY MUCH.
HERE WE GO.
I WANT TO TALK ABOUT SOME OF THE DISTINCTIONS AND DIFFERENCES IN THE WAY THAT COMPETENCY TO STAND TRIAL AND CONCEPTS AFFECT PEOPLE WITH MENTAL ILLNESS AND PEOPLE WITH DEVELOPMENTAL AND INTELLECTUAL DISABILITIES.
IN THE UNITED STATES, WE DO NOT PUT DEFENDANTS AT RISK OF THEIR LIFE OR LIBERTY IF THEY DON'T UNDERSTAND ESSENTIALLY WHAT'S HAPPENING TO THEM AND WHAT IS AT RISK FOR THEM IN THE COURSE OF THE CRIMINAL CASE IN A TRIAL.
THE CONSTITUTIONAL TEST DEVELOPED BY THE SUPREME COURT FOR COMPETENCE TO STAND TRIAL IS WHETHER HE HAS SUFFICIENT, PRESENT ABILITY TO CONSULT WITH A LAWYER, WITH A REASONABLE DEGREE OF RATIONAL UNDERSTANDING AND A RATIONAL AND FACTUAL UNDERSTANDING OF THE PROCEEDINGS AND WHETHER THE DEFENDANT, WHETHER HE OR SHE CAN ASSIST HIS OR HER COUNSEL IN THE PREPARATION AND CARRYING OUT OF THE DEFENSE OF THE CHARGES.
NOT SURPRISINGLY, MOST DEFENDANTS WHO ARE FOUND NOT COMPETENT TO STAND TRIAL HAVE A MENTAL DISABILITY EITHER INTELLECTUAL DISABILITY OR MENTAL ILLNESS.
INCOMPETENT DEFENDANTS, THEY CAN'T BE TRIED, AT LEAST FOR AS LONG AS THEY REMAIN INCOMPETENT.
WHEN THEY BECOME COMPETENT, THEY CAN BE TRIED, SO THEY CAN BE TRIED LATER IF THEY BECOME COMPETENT, AND THAT REALIZATION OF COMPETENCY IS ACHIEVEMENT OF COMPETENCY OR RESTORATION OF COMPETENCY HAS TO HAPPEN IN WHAT THE SUPREME COURT CALLED A REASONABLE TIME.
THE DEFENDANT FOR A REASONABLE TIME MAY BE COMMITTED TO A FACILITY, OFTEN IS COMMITTED TO A FACILITY FOR THE PURPOSE OF RETAINING COMPETENCE.
IN SOME STATES, AN ORDER FOR AN INCOMPETENT DEFENDANT FOR RESTORATION, THE DEFENDANT ALSO HAS TO MEET THE STANDARDS FOR OUR CIVIL COMMITMENT THAT DEPENDING ON STATE LAW THOSE USUALLY STANDARDS THAT THE PERSON HAS A MENTAL ILL OR INTELLECTUAL DISABILITY OR IS DANGEROUS TO HIMSELF OR OTHERS IF NOT PLACED IN AN INSTITUTION.
THE FUNDAMENTAL ISSUE, A FUNDAMENTAL AND DIFFICULT ISSUE IS, AS I SAID, HOW LONG A PERSON CAN BE INVOLUNTARILY DETAINED FOR TREATMENT OR EDUCATION TO ACHIEVE COMPETENCE TO STAND TRIAL.
THE QUESTION WAS FIRST ADDRESSED COMPREHENSIVELY BY THE SUPREME COURT IN A 1972 CASE, IN THE CASE JACKSON VERSUS INDIANA.
MR. JACKSON WAS ILLITERATE, HE WAS DEAF AND UNABLE TO SPEAK.
EXPERTS EXAMINED HIM TOLD THE TRIAL JUDGE THAT THE CHANCE THAT IS MR. JACKSON WOULD EVER BE COMPETENT TO STAND TRIAL WERE VIRTUALLY NONEXISTENT.
NONETHELESS, THE TRIAL COURT COMMITTED HIM TO AN INSTITUTION UNTIL HE BECAME IN INDIANA STATUTE SANE ENOUGH TO BE TRIED.
THE NATURE AND DURATION OF MR. JACKSON'S COMMITMENT HAD TO BARE SOME RELATIONSHIP, UNREASONABLE RELATIONSHIP TO THE PURPOSE OF THE COMMITMENT.
IN OTHER WORDS, WHAT WAS HAPPENING DURING THE COMMITMENT HAD TO BARE SOME RELATIONSHIP TO WHAT THE PURPOSE OF THE COMMITMENT WAS AND THE SUPREME COURT SAID THAT SINCE MR. JACKSON COULD NOT BE -- COULD NOT BE BROUGHT TO COMPETENCY, THAT HE COULDN'T BE HELD ANY LONGER THAN WAS REASONABLY NECESSARY TO DETERMINE THAT THERE WAS SUBSTANTIAL POSSIBILITY OR A SUBSTANTIAL PROBABILITY THAT HE WILL OBTAIN COMPETENCY IN A FORESEEABLE FUTURE.
THE COURT HELD THAT IT'S PERMISSIBLE TO OBTAIN AN INDIVIDUAL TO FACILITY OR RESTORATION OF COMPETENCY BUT THE TERM OF THE CONFINEMENT HAD TO BE REASONABLE TO DETERMINE WHETHER THE PERSON COULD BE -- COULD RETAIN COMPETENCY IN THE FORESEEABLE FUTURE.
SINCE 1972, COURTS AND LEGISLATORS, LEGISLATURES HAVE STRUGGLED TO FIGURE OUT JUST WHAT REASONABLE MEANS AND REASONABLE TIME IS AND JUST WHAT THE FORESEEABLE FUTURE IS.
AS AN EXAMPLE IN MASSACHUSETTS, THE WAY THAT WE HAVE DEALT WITH IT HERE, AFTER AN INCOMPETENT TO STAND TRIAL DEFENDANT HAS BEEN INSTITUTIONALIZED FOR TWO-THIRDS OF THE MAXIMUM TERM THAT SHE COULD BE SENTENCED TO, IN OTHER WORDS, IF SHE WAS SENTENCED FOR THE MOST SERIOUS CRIME BECAME ELIGIBLE FOR PAROLE WHICH IS AFTER TWO-THIRDS OF THE SENTENCE.
THE CHARGES THEN IN MASSACHUSETTS HAVE TO BE DROPPED AND THE INDIVIDUAL HAS TO BE RELEASED OR CIVILLY COMMITTED IF THE INDIVIDUAL MEETS THE COMMITMENT STANDARDS.
NOW, HOW FREQUENTLY DOES ALL OF THIS HAPPEN?
IT'S VERY HARD AS IT OFTEN IS IN COURT IN THE UNITED STATES TO COME UP WITH RELIABLE STATISTICS, BUT ACCORDING TO THE LITERATURE THERE ARE PROBABLY ABOUT 12 DEFENDANTS A YEAR WHO ARE FOUND INCOMPETENT TO STAND TRIAL.
SOMEWHERE BETWEEN 6 AND 16% OF THE DEFENDANTS WHO ARE FOUNDED INCOMPETENT TO STAND TRIAL ARE PEOPLE WITH DISABILITIES.
THEY ARE REFERRED TO EVALUATION.
ABOUT 12.5% TO 36% ARE DETERMINED INCOMPETENT TO STAND TRIAL WHILE ABOUT 45-65% OF DEFENDANTS WITH MENTAL ILLNESS ARE DETERMINED TO BE INCOMPETENT.
A SUBSTANTIALLY HIGHER FIGURE.
AVAILABLE DATA FROM A REVIEW OF CASE LAW, ANECDOTAL REPORTS SEEMS LESS LIKELY THAT WILL BE FOUND INCOMPETENT TO STAND TRIAL AS COMPARED WITH MENTAL ILLNESS.
DEFENDANTS WITH INTELLECTUAL DISABILITIES ARE ALSO LESS LIKELY TO STAND TRIAL AT A LATTER DATE.
THAT SECOND IS -- SECOND FACT IS LESS SURPRISING TO ME THAN THE FIRST ONE.
BUT THERE MAY BE SOME REASONS FOR THIS AND POSSIBLE EXPLANATIONS, MAYBE, THAT DEFENDANTS WITH INTELLECTUAL DISABILITIES ARE LESS LIKELY TO HAVE BEEN COMPETENT IN THE PAST AS COMPARED WITH DEFENDANTS WITH MENTAL ILLNESS.
THE STRATEGIES TO OBTAIN COMPETENCY FOR DEFENDANTS WITH INTELLECTUAL DISABILITIES ARE PROBABLY OFTEN MORE COMPLEX THAN THE ONES TO RESTORE COMPETENCY FOR DEFENDANTS WITH MENTAL ILLNESS.
SOME DEFENDANTS, FOR EXAMPLE, WITH MENTAL ILLNESS, MEDICATION AND PSYCHOTHERAPY, THEY HELP WITH DEFENDANTS WITH INTELLECTUAL DISABILITIES ON THE OTHER HAND THE TREATMENT MAY HAVE TO INVOLVE EDUCATION, VOCATIONAL TRAINING AND THERAPY, SPEECH THERAPY AND SO ON.
BECAUSE OF THE RELATIVE COMPLEXITY OF THESE METHODS AND THE INTENSITY NECESSARY FOR THEM, FACILITIES THAT RECEIVE PEOPLE WHO ARE INCOMPETENT TO STAND TRIAL MAYBE LESS WELL EQUIPPED TO SERVE THEM.
WHERE DO PEOPLE GO WHEN THEY'RE FOUND INCOMPETENT TO STAND TRIAL?
STATE STATUTES AND PRACTICES SET UP THE TYPES OF FACILITIES TO WHICH ARE INCOMPETENT TO STAND TRIAL DEFENDANTS MAY BE SENT.
PERHAPS STATE PSYCHIATRIC HOSPITALS ARE THE MOST COMMON AND ARE USED EVEN INAPPROPRIATELY FOR DEFENDANTS WITH INTELLECTUAL DISABILITIES IN SOME STATES.
SOME STATES ARE CONSTRUCTED SPECIAL I/DD FACILITIES, DEFENDANTS WHO ARE NOT COMPETENT TO STAND TRIAL OR FOUND NOT GUILTY BY REASON OF INTELLECTUAL DISABILITY OR MENTAL DEFECT OR WHATEVER THE STANDARD IS.
THESE FACILITIES ARE USUALLY SECURE AND CAN LOOK AND OFTEN BE OPERATED AS IF THEY WERE PRISONS OR JAILS.
SOME INCOMPETENT TO STAND TRIAL DEFENDANTS MAYBE HELD FOR RESTORATION OR MORE COMMONLY FOR EXTENDED PERIODS WHILE THEY AWAIT A BED IN APPROPRIATE FACILITY.
YOU WILL HEAR MORE ABOUT THAT LATER.
MASSACHUSETTS UNLIKE PROBABLY ANY OTHER STATE PLACES SOME INCOMPETENT TO STAND TRIAL DEFENDANTS INCLUDING SOME WITH INTELLECTUAL DISABILITY LIKE THE BRIDGE WATER HOSPITAL.
MOST STATES ALLOW FOR BUT NOT OFTEN USE COMMUNITY-BASED PROGRAMS FOR RESTORATION.
THIS ALTERNATIVE IS THE LEAST RESTRICTIVE ALTERNATIVE AND RESPONDS TO WHAT IS A BED SHORTAGE CRISIS FOR INCOMPETENT TO STAND TRIAL DEFENDANTS, BUT BECAUSE THE INDIVIDUALS HAVE PENDING CRIMINAL CHARGES IT'S OFTEN DIFFICULT TO COMMUNITIES AND THEY SHOULD BE TREATED IN A COMMUNITY-BASED PROGRAM.
NOW ACHIEVING COMPETENCY.
THE LIKELIHOOD THAT AN INDIVIDUAL WITH INTELLECTUAL DISABILITY WILL ACHIEVE COMPETENCE IS LOW AND THE LENGTH OF TIME THAT THE PERSON WILL SPENT INSTITUTIONALIZED IS LONGER AS COMPARED TO INDIVIDUALS WHO ARE FOUND INCOMPETENT BECAUSE OF MENTAL ILLNESS, ONLY ABOUT ONE-THIRD TO ONE HALF OF DEFENDANTS WITH INTELLECTUAL DISABILITIES OR DETERMINED TO BE INDEPENDENT TO STAND TRIAL ARE COMPETENT TO STAND TRIAL.
DEFENDANTS WITH MENTAL ILLNESS AND INTELLECTUAL DISABILITIES, ALL OF THESE DEFENDANTS WITH MENTAL DISABILITIES SHARE COMMON ISSUES THAT ARE OF CONCERN AND THAT ARE SYSTEMATIC EXCEPT WITH THE MOST PERHAPS -- WITH THE MOST DISABLED DEFENDANTS, CLINICAL PREDICTIONS OF WHETHER A DEFENDANT WILL BECOME COMPETENT OR OFTEN NOT RELIABLE.
SOMETIMES LITTLE BETTER THAN A CLINICAL GUESS AND IT'S DEPENDENT ON LOTS OF PREDICTABLE FACTORS.
THAT'S DETERMINING WHAT THE FORESEEABLE FUTURE IS AND A REASONABLE TIME HAS PASSED.
ACCORDINGLY COURT'S DETERMINATION OF REASONABLE TIME MAY VARY CONSIDERABLY AND AS WILL DETERMINATIONS OF WHAT THE FORESEEABLE FUTURE IS.
TO THIS POINT, IT'S WORTH NOTING THAT IN 2004 AN ANALYSIS BY PROFESSOR MICHAEL SHOWED THAT ONE HALF OF THE STATES, 30-SOME YEARS AFTER THE JACKSON CASE, NEARLY HALF OF THE STATES HAVE NOT IMPLEMENTED, ENFORCED OR OPERATIONALIZED THE REQUIREMENTS OF JACKSON WHICH CALLS FAILURE THAT'S UNTHINKABLE AND AREA OF UNCONSTITUTIONAL LAW.
MAY ALSO IMPACT COURT DECISION-MAKING, CLINICIANS ARE LIKELY TO WEIGH THE SERIOUSNESS OF OFFENSE AND LIKELY PUNISHMENT EITHER CONSCIOUSLY OR UNCONSCIOUSLY IN MAKING DECISIONS ABOUT COMPETENCY.
THE SAME CONSIDERATIONS MAY ENTER AND PROBABLY DO ENTER INTO DECISIONS TO DISMISS CHARGES OR RELEASE PERSON FROM SECURE CONFINEMENT AND THESE THINGS MAYBE MUCH MORE DIFFICULT DEPENDING ON THE CHARGES AND THE AVAILABLE PROGRAMS INCLUDING PROGRAMS THAT THE COURT AND THE COMMUNITY WILL CONSIDER SECURE.
SO THE CONCLUSION FROM THIS IS, I THINK, THAT FOR BOTH DEFENDANTS WITH INTELLECTUAL DISABILITIES AND THOSE WITH MENTAL ILLNESS, THE CRIMINAL JUSTICE SYSTEM COMPETENCY PROCESSES ARE DESCRIBED -- DESIGNED FOR MORE WITH MENTAL ILLNESS BUT PROBLEM FOR BOTH.
THE SERIOUS SHORTCOMINGS ARE EXACERBATED FOR DEFENDANTS WITH INTELLECTUAL DISABILITY AND YOU'LL HEAR MORE ABOUT THAT AS THE WEBINAR GOES ON.
SO THANK YOU.
> ALL RIGHT.
THANK YOU SO MUCH, BOB.
OUR NEXT PRESENTER IS CLAUDIA, CLAUDIA IS A SENIOR STAFF ATTORNEY WITH FOUNDATIONS DISABILITY RIGHTS PROGRAM.
SHE LITIGATES CASES THAT INCREASE CIVIL RIGHTS AND CIVIL LIBERTIES WITH PERSONS WITH DISABILITIES AND ACTIVELY INVOLVED IN LEGISLATIVE APPELLATE COURT.
A CASE THAT CLARIFIED THE SCOPE OF REASONABLE ACCOMMODATION FOR EMPLOYEES WITH DISABILITIES.
SHE'S HEADED 2000 AMENDMENTS TO EMPLOYMENT AND HOUSING ACT THAT CONFIRMED THE ACT FOR PERSONS WITH DISABILITY.
PRIOR TO JOINING, SHE WORKED AT LEGAL AID SOCIETY FOR 19 YEARS AND NATIONAL ABORTION AND REPRODUCTIVE ACTION LEAGUE FOR TWO YEARS.
SHE OBTAINED BA IN GOVERNMENT IN AFRICAN CITIES IN 1987 AND HER AT UNIVERSITY OF CALIFORNIA IN 1992.
SHE WAS A RECIPIENT OF THE WOMEN'S LAW PUBLIC LAW AND FELLOWSHIP.
WITH THAT, I WILL TURN IT OVER TO CLAUDIA CENTER.
> THANK YOU.
> ONE SECOND.
I HAVE TO GIVE PRIVILEGES HERE.
GIVE ME ONE SECOND.
APOLOGIZES TO EVERYONE.
I'M HAVING SLIGHT TECHNICAL DIFFICULTIES, JUST ONE MOMENT.
OKAY, CLAUDIA, GO AHEAD AND TURN ON YOUR VIDEO.
I'M GOING TO HAVE TO CHANGE YOUR SLIDES FOR YOU FOR THE MOMENT.
JUST LET ME KNOW WHEN YOU WANTING TO THE NEXT SLIDE.
> OKAY.
AM I -- IS THAT GOOD?
> YOU'RE GOOD, CLAUDIA.
YOU CAN GO AHEAD.
> OKAY, SO I'M GOING TO TALK A LITTLE BIT TODAY ABOUT THE DIFFERENCE BETWEEN GUARDIANSHIP AND WHETHER A PERSON IS INCOMPETENT TO STAND TRIAL AND I'M ALSO GOING TO TALK ABOUT WHAT ATTORNEYS SHOULD THINK ABOUT WHEN THEY'RE REPRESENTING INDIVIDUAL WHO IS ARE UNDER GUARDIANSHIP OR CONSERVATORSHIP AND IT'S VERY COMMON.
YOU CAN GO AHEAD ON THE SLIDE.
YEAH.
SO GUARDIANSHIP AND WHETHER A PERSON IS INCOMPETENT TO STAND TRIAL ARE TWO DISTINCT ASSESSMENTS UNDER STATE LAW.
OFTEN THE LAWS THEMSELVES WILL USE SIMILAR WORDS SO IT SEEMS AS THOUGH THEY ARE ALMOST CONNECTED BUT THEY ARE TWO DISTINCT ASSESSMENTS THAT ARE MADE FOR DIFFERENT PURPOSES AND IN DIFFERENT CONTEXTS, SO GUARDIANSHIP OR CONSERVATORSHIP IS REALLY IF SOMEBODY IS UNABLE TO PROVIDE FOR THEIR BASIC DAILY NEEDS EVEN WITH SUPPORTS AND WHETHER SOMEONE IS COMPETENT TO STAND TRIAL IS WHETHER THEY ARE ABLE TO UNDERSTAND THE CRIMINAL PROCEEDINGS AGAINST THEM AND WHETHER THEY'RE ABLE TO ASSIST IN THEIR DEFENSE.
SO THE OUTCOME OF ONE ASSESSMENT DOES NOT DETERMINE THE OUTCOME OF THE OTHER ASSESSMENT.
SO YOU CAN GO FORWARD ON THIS SLIDE.
ONE MORE.
SO WHEN THINKING OF REPRESENTING SOMEONE UNDER GUARDIANSHIP AND CONSERVATORSHIP IT'S IMPORTANT TO HAVE BACKGROUND ON THE GUARDIANSHIP SYSTEM OR THE TYPICAL GUARDIANSHIP IN MOST STATES.
IF YOU LOOK AT THE LANGUAGE THAT DEFINE GUARDIANSHIP IT SEEMS AS THOUGH IT'S A VERY NARROW STANDARD, IT'S OFTEN DESCRIBED AS THE LEAST RESTRICTIVE ALTERNATIVE BUT JUDGES ARE SUPPOSE TODAY GRANT IT WITH CLEAR AND CONVINCING EVIDENCE.
THEY'RE SUPPOSED TO BE A HEARING, BUT IN PRACTICE, THERE MAY NOT BE THAT TYPE OF CLOSE SCRUTINY AND EVALUATION IN GRANTING A GUARDIANSHIP.
GUARDIANSHIP MIGHT BE GRANTED BECAUSE IT'S DEEMED TO BE IN THE INDIVIDUAL'S BEST INTEREST OR A PARENT MAY SEEK GUARDIANSHIP BECAUSE THEY NEED TO MANAGE THE FINANCES OF THE INDIVIDUAL BUT THEY'RE ACTUALLY ABLE TO DO EVERYTHING ELSE.
A SERVICE PROVIDER MAY REQUIRE GUARDIANSHIP LIKE A DOCTOR MAY SAY, OH, I NEED GUARDIANSHIP TO GET CONSENT TO THIS MEDICAL PROCEDURE OR SERVICE PROVIDER MAY SAY, YOU KNOW, WE WANT GUARDIANSHIP, YOU KNOW, AS PART OF OUR PROCESS FOR ADMINISTERING THE SERVICE.
SO THEY MAY -- MAY HAVE BEEN PUT IN PLACE MANY YEARS EARLIER WITHOUT A LOT OF SUBSTANTIVE REVIEW OVER THE YEARS.
SO I THINK THAT IT'S IMPORTANT FOR AN ATTORNEY TO BASICALLY NOT MAKE ANY ASSUMPTIONS BASED ON THE FACT THAT A GUARDIANSHIP IS IN PLACE.
IT DOESN'T MEAN THAT THE INDIVIDUAL CAN'T COMMUNICATE.
IT DOESN'T MEAN THAT THEY CAN'T HAVE AN ATTORNEY-CLIENT RELATIONSHIP.