Expert psychology in incapacity courts: what it is and areas of action

These are the characteristics and functions of expert psychology in disability courts.

Within the different jurisdictions where forensic psychology can act, the disability court is one of the main jurisdictions..

Next we will discover how the expert actions are carried out in these courts, what is the purpose and what are the main variables that must be taken into account in these cases to act always with the maximum possible professionalism.

What is expert psychology in disability courts?

Expert psychology in disability courts is one of the scenarios in which forensic psychology can be developed. In this case, the performance of the expert psychologist will be aimed at assessing the degree to which a person is able to act in the following situationsIf this capacity is very deteriorated, a judge may deem it necessary to withdraw the legal capacity, which would fall to a guardian, also assigned by the judge.

The capacity to act can be broken down into four others, which are the ones that compose it. In the first place, the person's own self-government over himself. Also to the capacity to understand, that is to say, the intellectual capacity. The third would refer to the desire to perform actions, also called volitional capacity. The last of these would be the capacity for discernment, or judgment.

The work of the expert psychology in courts of incapacity is to study if the subject has altered any or all of the capacities we have listed, and to what degree.. That will be the major part of the work that will be reflected in the subsequent report to be submitted to the judge who requests it. But it is not the only task. It must also conduct a psychological evaluation of the different candidates for guardianship of the person to be incapacitated.

What is a judicial process of incapacity like?

These processes can be initiated in several ways. In the first place, it can be the person him/herself who requests that the incapacity be declared.The person may be aware of the progressive deterioration that he or she is suffering in his or her capacity to act. But it can also be his or her partner, ascendants, descendants or siblings. But it can also be the case that other persons or authorities bring the case to the attention of the Public Prosecutor's Office, so that it acts ex officio, if it believes it is convenient.

The claim for incapacity will go to the corresponding court, which can be a specific court of incapacity, if it exists in the province in question, or the court of first instance. This is where the work of expert psychology in incapacity courts begins, since the judge will require the help of the psychologist to evaluate the issues we have seen above.

Of course, the person who is the object of the hypothetical declaration of incapacity has all the procedural guarantees, starting with the right to appear before the judge and to have due legal representation if he/she so wishes. The judicial process will begin, in fact, with the actual examination of this person by the judge. The forensic medical team will then prepare its expert report..

Finally, all family members or other persons who may be eligible for legal representation of the person concerned will be interviewed. They may have volunteered themselves, they may have been proposed by the person pending incapacity or they may even have been called by the court itself.

Once all the parties have been explored and provided that the judge finally has the forensic reports, including the one provided by the expert psychology in incapacity courts, he/she will be able to issue a sentence. The judge will say whether or not the incapacity is granted, whether it is temporary or definitive, who will be the legal guardian from then on and whether the individual is required to be placed in an institution for his or her care.

In which cases does it act? Areas of intervention

We have already seen how a standard incapacity court trial works. Let's now learn about the most common types of cases the most common types of cases that judges and professionals of expert psychology in incapacity courts are usually confronted with.

1. Incapacity or changes in capacity

Most of the cases that enter these courts are requests for incapacity for people who, affected by a psychological illness that is limiting their ability to act in a persistent manner over time and therefore, as we saw at the beginning, cannot govern themselves.

Obviously, not all the cases are equal, since the incapacity can be presented in a gradual way. That is why, in addition to the figure of guardianship, there is also that of curatorship.. The guardianship would correspond to the person in charge of taking care of an individual who is totally incapable.

However, if the subject is incapable only to a certain degree and therefore requires the assistance of a person for some specific issues, the judge will most likely choose to assign a curatorship.

2. Cases of prodigality

Prodigality is a special case of those dealt with in expert psychology in incapacity courts. Refers to individuals who, for different reasons, waste their assets in a compulsive and unlimited way, putting at risk their financial situation and their dependants.This condition may occur, for example, in people with gambling addiction. This condition may occur, for example, in people with compulsive gambling.

In these cases, the judge may declare a partial incapacity and assign a guardianship to a relative to be in charge of managing the assets of the person in question.

3. Parental authority

Another situation that is also taken into account in the incapacity courts is parental authority, referring to parents of persons who are declared incapacitated. If they are minors, when they reach the age of majority, the parental authority will be extended, so that the parents will continue to be their legal guardians..

In the case of children of legal age, but unmarried and cohabiting with their parents, if they were declared incompetent, parental authority (which had ended when they reached the age of majority) would also be reestablished and they would therefore be under the guardianship of their parents.

4. Recovery of capacity

But not all the cases that are worked on in expert psychology in incapacity courts are aimed at studying whether a person, so far capable, should be declared incapable. The opposite may also be the case and questioning whether the incapacity that had been assigned to a given individual still makes sense or whether, on the contrary, he or she should be declared incapable. or, on the contrary, it should be revoked and his or her legal capacity restored.

It can occur in cases of illnesses with certain psychological illnesses that, thanks to treatment, have subsided or are reasonably controlled so that the subject has been able to recover his capacity to act and therefore has requested the judge to terminate his incapacity. Likewise, he/she will be evaluated by the forensic team of the court so that the judge has all the necessary information and can issue a sentence.

5. Change of guardian

It can also be the case that the team of expert psychology in courts of incapacity is summoned to evaluate a possible change of guardian. It can happen that the guardian himself has requested it, either because he does not see himself in conditions to continue exercising this responsibility or for any other reason. It may also be that another person has requested it, considering that the guardian is not performing his or her function as he or she should.

Even the authorities themselves may be the ones to reopen the case when they find that the guardianship is not being exercised as the law dictates and therefore the incapacitated person requires another person to be responsible for him/her. and therefore the incapacitated person requires another person to take responsibility for him/her.

6. Precautionary Measures

There may also be urgent situations that require the rapid incapacitation of a person, for example, in the case of involuntary commitment to a psychiatric institution.. Judicial authorization should always come first in such a scenario, but if the situation is of such urgency that it has not been possible to request it before, the person in charge of the center must inform the court within 24 hours of the internment.

Likewise, the measure must be ratified by the court within 72 hours of receipt of the request. In addition, the process must always be carried out by the judicial authority of the province where the center where the person has been hospitalized is located, regardless of the fact that the person usually resides elsewhere.

These would be the main casuistry that professionals of expert psychology in disability courts would face.

Bibliographical references:

• Asensi, L.F. (2007). La prueba psicológica en asuntos de incapacidad. Legal-Forensic Psychology. University of Alicante. Department of Health Psychology.
• Sarmiento, A., Varela, O. H., Puhl, S. M., Izcurdia, M. A. (2005). Psychology in the legal field. Buenos Aires: ECUA.
• Solitario, R. (2011). Legal incapacity, parental authority and human rights. The political challenge of egalitarian rights and the right to difference. Anuario de investigaciones.