LEGAL GUARDIANSHIP OF THE PSYCHIATRIC PATIENT - PSYCHIATRIC AND FORENSIC PERSPECTIVES

D. P. Dumbrava, D. Ureche, C. Rebeleanu, C. Siserman, C. Crișan, I. Miclutia

Abstract: Background and aim. An interdiction process is a legal process where a court is asked to determine, whether a person is capable, due to an infirmity or an illness, to consistently make decisions regarding his person and/or his property, or to communicate those decisions. If such a finding is made, the court appoints someone to make these decisions for him. Therefore to establish the mental capacity of a person the court will appoint a forensic service to make a full psychiatric expertise. In forensic practice, the psychiatric expertise is a complex activity that has been increasingly sought in recent years due to the awareness of the importance of this expertise in the legal steps to protect the person and his assets. The main reason for these kind of expertise is the objective of putting a person under a judicial ban, generating a conservatorship or a guardianship measure. The main purpose of this study is to present those medical situations with a psychiatric component in which it is necessary to place a person under judicial interdiction and establish a guardianship measure. Method. We performed a descriptive, restorative, observational study on patients undergoing a forensic psychiatric expertise in a mandatory examination for the establishment of conservatorship or guardianship, during January-December 2017. The cases were selected from the Institute of Legal Medicine Cluj-Napoca database. Results. From a total of 249 cases registered, 183 cases were subject to judicial interdiction for guardianship measure. The ability to be a capable person implies the integrity of the cognitive intellectual and volitional-cognitive capacities of the mature personality, including discernment. In relation to this definition, we note that the mental capacity in our study, was absent in 88% of the cases, these being also the cases where it was indicated the interdiction procedure in the incapacitated persons, and only in 12% of cases the person’s diagnosis did not influenced its mental capacity, the mental capacity being present. Conclusion. Main psychiatric diagnoses or associated co-morbidities may lead to the interdiction of a person in cases of conservatorship or guardianship. There is an association between psychiatric diagnoses and the age of individuals. The most frequent psychiatric pathologies responsible for putting a person under the ban are severe or moderate mental retardation and mixed dementias or Alzheimer’s. The forensic psychiatric expertise is mandatory in cases of judicial interdiction and is a complex interdisciplinary examination.
Keywords: psychiatric expertise, court ban, forensic expertise, legal guardian, guardianship