Mental Incompetency and the Equitable Use

A Tract Book Essay

By

Anthony J. Fejfar, J.D., Esq., Coif

© Copyright 2007 by Anthony J. Fejfar

I once met a psychologist who asked me whether a person who

was adjudicated judicially incompetent to stand trial for a mental health

disability would have the right to practice law if the person was an

otherwise licensed attorney. I responded that such a mental health-legal

status was irrelevant as long as the person did not violate the Legal Ethics

rules in the requisite jurisdiction. An attempt by the Bar or Judiciary or

legislature to prevent some one from practicing law based on his status of

having a mental health disability would be a violation of the Federal

Americans with Disabilities Act, the Equal Protection clause of the United

States Constitution, and 42 U.S.C.A. section 1983.

Now, another argument I have heard made is that a person who is

mentally ill and judicially incompetent to stand trial does not have the legal

capacity to own property or to contract. Once again this argument fails. I

argue that once a mentally ill person adjudicated judicially incompetent to

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stand trial, that that person holds an equitable use in all of his or her property

and can contract in Equity under the theory of in Quantum Meruit, that is,

he can contract for the reasonable value of property or services, in Equity,

enforceable at Equity. Bare legal title at law, subject to the person’s

equitable use could be held by a guardian or by the attorney general in his

capacity of parens patria, that is, one who is responsible for representing to

best interest or rational self interest of minors or incompetents in Equity.

Obviously, a mentally ill person who is adjudicated judicially incompetent to

stand trial can contract in Equity with a Bank or a savings account or

checking account.

Now, the only counterargument that I can see to the position taken

above, is that the Statute of Uses, enacted by Parliament in 1538, would

apply. The Statute of Uses states that any equitable use is converted to a use

at law. Now, while this may seem to hurt the argument for a person holding

an equitable use, it really does not. What happens instead is that the

mentally ill person can hold a law license, practice law, contract at law, hold

title to property at law, hold a savings account at law, and hold a checking

account at law, instead of in Equity. If this is somehow challenged by a

Guardian or another, then the use at law reverts back to an Equitable Use,

and the Statute of Uses is inapplicable.