The Gazette 1981

SEPTEMBER 1981

GAZETTE

The Legal Problems of Ageing (Paper to the Incorporated Law Society Symposium "The Mentally Handicapped and the Law", 27 June, 1981). by

Charles R. M. Meredith, Solicitor

S O far as the application and operation of our law is concerned, it matters little whether the mental incapacity arises as a result of the passing of the years or through any other reason. The only area of mental incapacity which is separately recognised by our legal system is that of extreme youth — persons under a certain age being regarded as being incapable of managing their own affairs. Until about thirty years or so ago, our law so recognised the distinction between the two principal categories of mental disability that those under the age of 21 years were dealt with and described as "Minors", whereas those suffering from mental disability arising otherwise than simply through tender years were described as "Persons of Unsound Mind". This description was considered to be kinder than "Lunatics", but increased social awareness, led, ultimately, to all categories being described as "Wards of Court". It may be of interest to record that the jurisdiciton of the Courts over the affairs of persons incapable of looking after themselves is of vast and authentic antiquity. The roots of guardianship are embedded in both Roman and English law. In the ancient Rome of Cicero's time, we are told, extensive provisions existed under Roman law for the protection of the property of mentally disabled people, although no such provision was made for their persons. Under English law, from which our own law derives, the intervention of the Courts in the affairs of mentally disabled people stems from the duty, long recognised, of the monarch to look after the property of lunatics and idiots, which duty rested upon feudal lords long before the passing of the Statute "De Praerogativa Regis" in the reign of Edward II. The monarch customarily delegated his functions to his Lord Chancellor and, gradually, to other Judges and thus the term "Court" came into the picture. More recently, the management of the legal and property affairs of mentally disabled people and of those under the age of 21 years, has been regulated by a series of Statutes, the principal of which now are the Guardianship of Infants Act, 1964, which — as its name implies, deals only with people under the age of 21 years, and the Lunacy Regulation (Ireland) Act, 1871, — a piece of legislation which may have been enlightened 110 years ago, but which is by now limited in its scope, cumbersome, time consuming and expensive to operate. The Irish Position Contrasted Under what, for want of a better expression, we must now call "Irish" law — England and Wales, Northern Ireland and Scotland having gone their separate and to a greater

or lesser extent, differing, ways — the concerns of property and the person are considered separately; responsibility for the property and for the person of someone of unsound mind can be vested in separate individuals although, in fact, the custom is for the one individual to be appointed by the Court to care for the property and the person of the Ward. The name given to the individual in whom this responsibility is vested is "Committee" — a misleading name as, in ordinary usage, it implies a group of people acting in concert, which is the exact opposite of what the person actually is. The word "Guardian" is already current in the case of minors and a valid argument could be made that the same word should apply in the case of people who are so mentally incapacitated that they need somebody else to manage their affairs. In some jurisdictions, the word "Conservator" is also used. "Guardianship" is a legal relationship which authorises one individual to become a substitute decision-maker for another; what should concern us and our legislature is the ordering of the conduct of that substitute decision-maker so that, with the greatest ease and flexibility and with the least expense, all necessary decisions can be taken and all consequent actions carried out on behalf of the Ward. Here we come to a very real difficulty which we, with the benefit of 110 years hindsight, can see was inadequately appreciated during the reign of the good Queen Victoria. In her day, things seemed substantially more black and white than they do today and, then, the mentally disabled person was almost automatically regarded as being so lunatic as to be incapable of doing anything for himself. We have, over the years, come to realise that there are extensive gradations of mental incapacity. Many legal jurisdictions have applied themselves to the difficult but socially necessary task of differentiating between those gradations and of providing a legal framework capable, first, of recognising what gradation of incapacity is present in any case and, second, of imposing only as much "substitute decision- making" as that case requires. In England and Wales, the Mental Health Act of 1959 has revolutionised their law, while Scotland had its own enactment a year later. In the United States of America, all 50 States have their own Statutes and a recent statutory survey of the whole body of legislation disclosed that while all American jurisdictions provide statutorily for some form of guardianship of adult persons and conservatorship of their property, if they are not able to care for themselves without assistance, the nature and extent of that provision is by no means uniform. For example, fourteen states specifically include

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