Striking for the Guardians and Protectors of the Mind: The Convention on the Rights of Persons with Mental Disabilities and the Future of Guardianship Law

In many nations, entry of a guardianship order became the “civil death” of the person affected. It has been accurately characterized as “civil death” characterization because a person subjected to the measure is not only fully stripped of their legal capacity in all matters related to their finance and property, but is also deprived of, or severely restricted in, many other fundamental rights, [including] the right to vote, the right to consent or refuse medical treatment (including forced psychiatric treatment), freedom of association and the right to marry and have a family.Guardianship is also frequently entered. In Hungary, for example, there are approximately 80,000 people under guardianship, and approximately 40,000 of these people are under guardianship without active legal capacity. An estimated 300,000 people in Russia alone are currently under guardianship, all stripped of their personhood and of their legal rights. The United Nations’ ratification of the Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities, and in no area is this more significant than in the area of mental disability law. And there is no question that the CRPD speaks to the issue of guardianship. The question is this: What impact, if any, will the CRPD and other international human rights documents have on guardianship practice around the world? This question is of great importance, given the common usage of this status and the lack of procedural safeguards that attend the application of this status in many nations. Although there is some recent scholarship dealing with this issue, it has not been the focus of nearly enough attention in the four years since the CRPD’s ratification. I hope this article causes both scholars and advocates to take this issue more seriously in the future.First, in Part I, I will examine why guardianship is considered “civil death” in much of the world, with special focuses on practices in nations in Central and Eastern Europe. As part of this examination, I will consider why designating a psychiatric institution as a patient’s guardian is a conflict of interest per se and terribly wrong. Then, in Part II, I will briefly survey domestic law, with special focus on distinctions that are drawn between guardianships of the person and of property, and between limited and plenary guardianships. After that, in Part III, I will look more carefully at the CRPD, the relevant literature about that Convention’s possible impact on the application of guardianship laws, and the meager caselaw that has emerged, with specific focus on the question as to how the CRPD potentially can reshape guardianship law internationally.Next, in Part IV, I will raise some “red flags” that must be confronted in this inquiry. Such issues include the need for some mechanism to insure the appointment of counsel to persons facing guardianship; the need for a mechanism to insure that, in those cases in which guardianship is inevitably necessary, “personal” guardians will be appointed instead of institutional ones; the need for domestic courts — in all parts of the world — to take these issues seriously when they are litigated on a case-by-case basis; and the inevitable problems that will arise when our attention is drawn to Asia and the Pacific region, where there is no regional court or commission at which litigants can seek enforcement of the CRPD. Finally, in Part V, I will consider the impact of the school of therapeutic jurisprudence on the questions at hand. I will conclude by looking again at the CRPD as a potentially emancipatory means of restructuring guardianship law around the world, but if, and only if, the variables discussed immediately above can be resolved.