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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