Guardianship Liability A Tract Book Essay By Anthony J. Fejfar, B.A., J.D., Esq., Coif © Copyright 2007 by Anthony J.

Fejfar Although it is rare for an adult, mentally ill person to have a guardian, the topic deserves jurisprudential analysis. Until proven otherwise, I argue that an adult mentally ill person with a guardian should be treated the same as a 20 year old minor. In other words, unless proven differently, with a due process proceeding involving a person examination of the ward, a mentally ill adult should be treated in roughly the same way as a junior in college. Many mentally ill persons can understand a simple contract, balance a check book, understand what means to own property, and own property. Virtually all mentally ill persons value their own freedom of expression and freedom of religion. I argue that a mentally ill person has all the same constitutional and legal rights as a “normal” person, with additional rights in equity. It follows, therefore, that if a guardian attempts to force an adult ward to adopt particular religious beliefs or practices, that this is an infringement upon the constitutional rights of the ward. Similarly, if a guardian attempts to stop a ward from writing or saying nondefamatory speech, that this is also an infringement upon the constitutional rights of the ward. This is particularly true of political speech. Obviously, a guardian cannot tell a ward how to vote, and cannot vote in place of the ward.

Since a guardianship is a creature of state statutory law, it is clear that any acts of a guardian become “state action” “under the color of state law” for purposes of federal law. If ward’s religious freedom is infringed upon by a guardian, clearly there would be a cause of action for damages against the guardian by the ward under 42 United States Code, section 1983, and the guardian could be convicted of a federal crime under 18 United States Code, section 242. Similarly, if a ward’s freedom of speech is infringed upon by a guardian, once again an action could be brought under section 1983 for damages, and a prosecution brought under section 242 for the guardian’s imprisonment.

Sign up to vote on this title
UsefulNot useful