'Let's Do the Time Warp Again': Assessing the Competence of Counsel in Mental Health Conservatorship Proceedings
91 Pages Posted: 12 Nov 2008 Last revised: 10 Dec 2008
Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients' interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the "paternalistic attitude" exhibited by appointed counsel for proposed conservatees, ruled that proof beyond a reasonable doubt and jury unanimity are constitutionally mandated standards necessary to assure that mental health conservatorships are accurately established. I have now replicated that study to determine whether the California Supreme Court's critique of attorney performance has significantly improved the representation of persons who have been proposed for mental health conservatorships. The data reveal that the quality of legal representation for proposed conservatees has not improved significantly. Stated simply, paternalism persists. The article explores reasons why the paternalistic model of legal representation continues today, despite the California Supreme Court's disapproval of such model in these cases 29 years ago, and what changes are needed to assure that individuals for whom a conservatorship has been proposed receive effective assistance of counsel in proceedings to establish a conservatorship.
Keywords: ineffective assistance of counsel, zealous advocacy, legal profession, U.S. Constitutional Law: Rights and Liberties, mental disorder, civil commitment, right to refuse treatment, conservatorship
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