The state may authorize the commitment of a person to a mental institution through the exercise of either its police power to protect society from dangerous persons or its parens patriae power to protect dangerous persons from themselves. Society often assumes that those seeking to commit an elderly person are seeking to protect that person’s welfare. On the contrary, the moving party may desire the commitment merely because she is inconvenienced by the presence, needs, and querulous or eccentric behavior of the elderly person. Mental institutions have recently contained three times as many inmates as prisons, and the elderly, committed for the convenience of others rather than for the severity of their mental impairment, constitute a large percentage of these inmates.

Individuals suffer the ultimate indignity when, in their final years, they are stigmatized as mentally incompetent. The United States Supreme Court has repeatedly recognized that civil commitment constitutes a “massive curtailment” of one of the most basic human rights, liberty of movement. The Court remarked that commitment “can engender adverse social consequences to the individual. Whether we label this phenomenon ‘stigma’ or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual.”

Furthermore, experience has demonstrated that institutionalization usually does not benefit the elderly. One study found that in nearly every case studied the condition of the aged inmate had deteriorated after commitment, and in almost no case did an individual benefit in a way which could not have been achieved without institutionalization.6 Analysts have concluded that mental hospitals are actually antitherapeutic. Survival of elderly persons is negatively related to placement: 50% to 60% of older persons admitted to mental hospitals die during the first year. An attitude of “therapeutic nihilism” surrounds institutionalized elderly persons so that they probably will receive only custodial care rather than treatment, and their placement probably will be permanent. In short, commitment is often no more than warehousing pending an accelerated death.

The moving party may seek a guardianship of the person on grounds similar to those for commitment. The guardian of the person ordinarily has the power to place an elderly ward in a nursing home or a private custodial home or hospital or, in some jurisdictions, to commit her to a mental institution. The past decade has seen an assault on unwarranted commitments at the same time that an increase in funding sources has made possible a large growth in the number of nursing homes. These homes vary widely inquality; many are seriously inadequate and offer an environment even more adverse to an elderly person than a mental hospital. They have become dumping places for persons who, at one time, would have been committed. To some extent the imposition of a guardianship may be as devastating as a mental commitment.

The possibility that these drastic detrimental effects will be visited on the elderly person means that she is entitled to counsel. The attorney for the elderly person carries a heavy obligation to resist unnecessary confinement or guardianship which could lead to confinement. This is the only assurance the elderly client has that she will receive due process and not suffer unwarranted loss of liberty.

Unfortunately, attorneys representing those for whom commitment or guardianship is proposed seldom prepare adequately and do not effectively participate in the hearing. This perfunctory performance occurs in part because attorneys incorrectly assume that experts have determined that commitment is necessary for psychiatric reasons, and in part because they wish to avoid informal sanctions from their peers and the judiciary for disrupting a system which depends upon mass processing of cases in the shortest time possible. The Supreme Court has noted “[t]he expanding concern of society with problems of mental disorders” reflected in efforts in recent years to “protect the rights of the mentally ill.” The practicing lawyer should know how to effectively represent elderly clients faced with commitment proceedings.

This article will present a brief survey of procedural and substantive constitutional requirements applied to mental health-related commitment proceedings. Primary degenerative dementia, the mental disorder most likely to be diagnosed in elderly subjects, will be discussed and related to substantive constitutional requirements.