Who is mentally incompetent

Between the allegations regarding the illegal and fraudulent marriage licenses, the appointment of a guardian, and questions regarding physical and mental capacities, the case created a controversial precedent that the Kentucky Supreme Court used in their present case, regarding legal separation and mental incompetence. Annulments are often discussed when a marriage is entered under what is considered subjective consent.

The Modern Law Review classifies examples of subjective consent as follows:. In addition, the ability to understand the actions being taken creates a great requirement for mental capacity.

According to research at Duke University, in common law and generally today, the marriage of one lacking in mental capacity used to be treated as totally void, and thus open to collateral attack and to attack after the death of either party, except where statutory provisions have affected a different rule. The research states, however, there are presently different rules depending on the jurisdiction.

In a few states, express prohibition on collateral attack exists. In other jurisdictions, annulment procedure statutes, provided that the marriage of one lacking in mental capacity shall be void from the time it is decreed, have been constructed as making such marriages voidable only.

In some countries, such as the U. The spouse in question would have to make someone their litigation friend to make decisions on their behalf. Mental illness tends to create legal quandaries when it comes to pursuing a divorce. If the court agrees the defendant is competent, they are released and a criminal trial date is set. Such a competency ruling cannot be used as evidence against the defendant if they later pleads insanity as a defense in the criminal trial. An insanity defense refers to the defendant's inability to know or appreciate right from wrong at the time of the alleged crime.

The Jackson ruling also specified that "treatment must stop if there is no substantial probability that the defendant will regain trial competence in the near future. The development of powerful drugs has given the government the opportunity to medicate mentally incompetent defendants to the point whre they are competent to stand trial. By , the federal government was medicating hundreds of defendants each year but a small number objected to medication.

Mental incapacity may be temporary or ongoing or may only affect certain decisions. Capacity to make a decision can therefore change depending on what the decision is, the complexity of the issues involved in the decision and when the decision is to be made.

Even where some form of cognitive difficulty has been confirmed an individual should be given the opportunity to make their own decision on each occasion, as that person may have the capacity to do so at that particular time. Sometimes this occurs through a natural process - for example, where family members gradually take over decision making responsibilities for a mentally frail elderly relative and that person agrees to the help being provided.

However formal assessment may be required particularly for legal processes or where there are differences of opinions about what is happening. As most incapacities are medical in their origins, doctors are asked to provide reports regarding capacity. This may be a general practitioner or a doctor who specialises in mental functioning such as a neurologist, geriatrician or psychiatrist.

Clinical and neuro psychologists also have specialist skills in assessing mental functioning. This paper considers the way in which the best interests test has been used in making health care decisions for mentally incompetent individuals in the Irish and English Courts where this is the test of choice. It looks in brief at the development of the test and the way in which the House of Lords has "de-theorised" the question of best interests in cases such as Re F Mental Patient: Sterilisation and Airedale N.