By John DiMotto
One of the most difficult decisions a judge makes is when he/she orders a guardianship and a protective placement.
While a guardianship and a protective placement is often necessary due to dementia, stroke, serious and persistent mental illness or other like incapacities, it still involves handing over the "life reins" of an individual to another person.
In many cases the person who is the subject of the hearing is completely incapacitated and cannot do anything for himself/herself. However, there are those individuals who are just "over the border" of incompetence but who still want to control their own lives and destiny. These are the tough cases.
The ultimate decision that must be made in the "close cases" is whether it is the incompetence that has caused the problem or whether it is a person who has decided - and the key word is "decided" - to make a choice that perhaps you or I would never make. People have the freedom to make poor choices. However, it must be a "choice." In every city, you see homeless people. If it is a lifestyle that is "chosen" by a person who is not incompetent, society cannot not intervene as a super parent and reverse that decision.
When a guardianship and protective placement is ordered, the case does not disappear from the radar of the court. It must be reviewed every year to make sure that the placement is the least restrictive given the circumstances of the person. Original placement in a nursing home may no longer be appropriate and transfer to a group home or independent apartment may be in order. This is what is known as a Watts Hearing. Every person under a guardianship and protective placement is entitled to an annual review. This ensures that no one "falls through the cracks." This ensures that the restrictions on liberty are only to the degree necessitated by an individual's incapacity.
Watts Hearings do create a lot of work for the court system, but it is necessary work in a society that promises liberty and justice for all.