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Children, persons in hospitals, prisons, or otherwise institutionalized, as well as persons who have diminished mental capacity and are thus incapable of making informed decisions concerning their own welfare are said to be under a legal disability. In such instances, the court with jurisdiction over the matter will appoint a special representative known as a guardian ad litem. The guardian may be an attorney, social worker, or other person whom the court believes will protect the interests of the person under disability, and has all the authority to act in the disabled persons stead as if the disability did not exist. He may retain counsel, call witnesses or cross examine other witnesses, conduct investigations and make recommendations to the Court. Guardians ad Litem are most frequently used in divorce actions in which custody of minor children is an issue. They are also used in cases determining disposition of the property of a mentally incapacitated person or a person institutionalized whose circumstances prevent his ability to be adequately represented in court.
Incapacitated persons are protected under the law through adjudication of incapacity and through guardianship. The Court acknowledges some people are mentally ill or are severely brain damaged. The Court through its mechanisms can and will take action to protect the person. All states have laws that allow a person to be admitted to a mental health facility.
Guardianship proceedings involve an interested person petitioning the Court to become a Guardian and assert control over the alleged incompentant person. Generally, 3 persons are appointed to evaluate the alleged incompotent. The 3 persons consist of a physciatrist, a physcologist and a licensed clinical social worker.
Those 3 professionals evaluate the alleged incapacitated person. They submit reports to the Court. The alleged incapacitated person is represented by an attorney (Court appointed or private).
At the end of the incapacity hearing the Court issues a judgement. The judgement allows for varying degrees of incapacity. It can include a judgement of no incapacity, a judgement of varying degrees of incapacity, or a judgement of complete incapacity.
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