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44 Colum. Hum. Rts. L. Rev. 93 (2012-2013)
Changing Paradigms: Mental Capacity, Legal Capacity Guardianship, and Beyond

handle is hein.journals/colhr44 and id is 101 raw text is: CHANGING PARADIGMS: MENTAL CAPACITY, LEGAL CAPACITY, GUARDIANSHIP, AND BEYOND KRISTIN BOOTH GLEN* I. INTRODUCTION A. Capacity and Incapacity Guardianship is the legal process by which the state deprives a person of the power to make and act on some or all decisions, and grants that power to another individual or entity, upon a finding that the person lacks capacity.' Inherent in this process are several very * Surrogate, New York County; Dean Emerita, City University of New York (CUNY) School of Law. Judge Glen is currently a member of the American Bar Association Disability Rights Commission, and this Article is adapted from a presentation sponsored by the Commission at the American Bar Association Annual Meeting in Toronto, August 6, 2011. This Article is dedicated to the memory of Professor Rhonda Copelon (1944-2010) and her students, over two decades, in the CUNY School of Law International Women's Human Rights Clinic, two of whom, Tina Minkowitz and Anna Arstein-Kerslake, are significant figures in changing the conversation about intellectual and mental disability and human rights. Thanks to Erica Wood, Arlene Kanter, Leslie Pickering Francis, Carrie Griffin Bassas, and Leslie Saltzman from whom I have learned so much, to the members and staff of the ABA Commission on Disability Rights, and to Janet Mishkin for her patience and support. 1. A person may lack capacity for a number of reasons or as the result of a number of different medical and psychiatric conditions. She may have suffered brain damage in an accident, or lost cognitive function because of a stroke. She may have a mental illness (now denominated a psycho-social disability) like schizophrenia; her cognitive abilities may be impaired by virtue of medications she is taking or illegal drug use. In all these situations we are dealing with adults who have previously possessed, but have now temporarily or permanently lost, cognitive ability and, hence, mental capacity. These are the persons covered by current adult guardianship status. There are also persons-millions of them- who are born with cognitively disabling conditions like Down syndrome, cerebral palsy, and autism, which have been denominated mental retardation and developmental disabilities and which are now more generally referred to as intellectual disabilities. Most guardianship statutes cover both groups: the newly incapacitated and people with intellectual disabilities. But see notes 86

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