Guardianship is not a get-out-of-jail free card |

Guardianship is not a get-out-of-jail free card

Lately, I seem to have had a string of guardianship cases that originate when the Protected Person engages in activity that is illegal or dangerous. Often this behavior is found to be symptomatic of an underlying mental health issue, like schizophrenia. As an attorney who practices in guardianships, these cases have illuminated an intersection between criminal court and the guardianship court that often causes confusion to my clients and lay person.

This confusion stems from differences between what it means to be “incapacitated” in a guardianship proceeding, versus what it means to be “incompetent” in a criminal proceeding. The Legislature took steps this last session to overhaul the laws affecting guardianship, and in the process has exacerbated the confusion between these two definitions. (Note that the Legislature has shifted the language so that a person subject to a guardianship is now a “protected person,” not a “ward.”)

For starters, the Legislature removed the concept of “incompetent” from guardianship law. Now, a person must be “incapacitated.” When an adult is “incapacitated,” the court may appoint a guardian to act on behalf of the person. To be “incapacitated” a person is unable to receive and evaluate information or communicate decisions to such an extent that the person lacks the ability to meet essential requirements for physical health, safety or self-care without appropriate assistance.

In contrast, in the criminal setting, a defendant is “incompetent” if that person does not understand the nature of the criminal charges against him, does not understand the nature and purpose of the court proceedings, or cannot aid and assist counsel in mounting a defense with a reasonable degree of rational understanding. If a defendant is “incompetent” then that person cannot be tried, found guilty, or punished for a crime so long as that incompetency persists.

As you can see, these are very different definitions. A person who is incapacitated and subject to a guardianship could still be competent for criminal actions that the person takes, despite the medical condition, cognitive disability, or mental illness that is the root cause for the guardianship. Indeed, the Legislature finally recognized that gap in this last session by adding a requirement to statute that a guardian be notified if the Protected Person is charged with a crime.

In short, if a guardianship is in place over an adult, the guardianship does not necessarily mean that the Protected Person will not be held accountable or punished for criminal activity. While a person may not be able to meet his or her essential requirements for health, safety, or self-care, that same person may still understand the nature of the criminal charges made against him or her, may still understand the nature and purpose of the court proceeding, or assist his or her counsel in mounting a legal defense. Guardianship is not a get-out-of-jail-free card.

Cassandra Jones is an elder law and family law attorney in Gardnerville. She can be reached at 782-0040.