Legally Incompetent: A Research Note

Abstract

On August 13, 2007, Brooke Astor, a much-admired (and very wealthy) woman died at her estate, Holly Hill, at the age of 105.1 For many years, in New York City, she was known as the city's unofficial first lady, spending her late husband's money for all sorts of good and great causes. In her last years, she had sunk into the twilight world of Alzheimer's disease; her only son acted as her guardian, and a raucous and bitter squabble broke out between son and grandson, over charges that her son had abused her and pillaged the estate. Earlier in 2007, Anna Nicole Smith died suddenly. This was the cli max to the incredible story of a flamboyant woman. Smith was the young, blond, and sensational widow of a billionaire, J. Howard Marshall, and was suing for a share of his estate. A short time before she died, Anna gave birth to a daughter, Dannielynn. If Smith's lawsuit is successful, Dannielynn will be a very rich child. Several men claimed to be her father; and thus for the right to act as her legal guardian. Both of these situations made the headlines. Both involved a great deal of money. Both concerned persons who were legally incompetent: Brooke Astor, at the very end of a long life; Dannielynn Smith, at the be ginning of hers. The chemical reaction between incompetence and money produces a demand for the legal status of guardianship. Neither babies nor people suffering from dementia can handle their money; someone, then, has to do it for them. We call that someone a guardian, though in some states, and under some circumstances, this role has a different name. Appointing a guardian is a legal proceeding; and a proceeding which has enormous impact on minors, the insane, and the incompetent. Through the power of parens patriae the state authorizes someone to take care of the money?and the body?of those who, due to mental incompetency2 have been deprived of self-determination and self-management.3 Guardians are, in a way, substitute parents4 for wards of the state dur ing their period of incapacity.5