In each issue of the Law Reporter, the "Legislation and Regulations" section contains summaries of key federal and state disability legislation and regulations.

Sample Legislation / Regulations from the January / February 2008 Issue

Federal Action(s)

Gun Purchase; Criminal Background Check; Mental Illness

Congress enacted the National Instant Criminal Background Check Improvement Amendments of 2007 to enable states to identify potential gun buyers with mental illness that disqualifies them from owning guns under federal laws P.L. 110-180 (Jan. 8, 2008).

States and federal agencies must report to the National Instant Criminal Background Check System (NICS) persons “adjudicated as a mental defective” or “committed to a mental institution.” States and federal agencies may not provide records of mental health adjudication or of any commitment to a mental institution if:  the adjudication or commitment has been set aside or expunged; the person has been released or discharged from all mandatory treatment, supervision, or monitoring; a court, board, commission, or other lawful authority has found that the person no longer has the mental condition or has otherwise been rehabilitated through any procedure available under law; or the adjudication or commitment is solely based on a medical finding of disability without an opportunity for a hearing by a court, board, commission, or other lawful authority. The Attorney General must ensure that any information submitted or maintained is kept accurate and confidential, as well as provide for the timely removal and destruction of obsolete and erroneous names and information from the NICS.

State Action(s)

New Jersey
Death Penalty; Abolishment; Retroactivity

New Jersey enacted legislation eliminating the death penalty and replacing it with life imprisonment in a maximum security prison without the possibility of parole. Inmates sentenced to death prior to the date of the Act’s enactment must motion the sentencing court within 60 days of the Act’s enactment and waive any further appeals related to sentencing or their death sentence will remain. Senate Nos. 171 & 2471 (2007).

Wisconsin
Guardianship; Appointment; Powers & Duties; Protective Services

Wisconsin passed an Act in order to reconcile conflicting provisions within 2005 Wisconsin Act 264, 2005 A.B. 785, 30 MPDLR 839, addressing protective placement, and Wisconsin Act 387, 2005 S.B. 391, 30 MPDLR 838, addressing guardianship, in order to allow practitioners to know which provisions apply. 2007 A.B. 279.

The existing guardianship and protective services legislation, which was amended in 2006, has three different categories of interventions. To appoint a guardianship of the person, courts must find that the individual, due to an impairment, is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that he or she is unable to meet essential requirements for his or her physical health and safety. For guardianship of the estate, courts must find that the individual, due to an impairment, is unable effectively to (1) receive and evaluate information or to make or communicate decisions related to management of his or her property of financial affairs to the extent that the property will be dissipated in whole or in part, or (2) provide for his or her support or to prevent financial exploitation. To grant a petition for protective services, courts must find that the individual, due to an impairment, will incur a substantial risk of physical harm or deterioration or will present a substantial risk of physical harm to others if protective services are not provided. “Impairment” in all three formulations means a developmental disability, serious and persistent mental illness, degenerative brain disorder, or other like incapacities.

The new Act provides more uniform definitions of these impairments. A “developmental disability” is “a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or another neurological condition closely related to mental retardation or requiring treatment similar to that required for individuals with mental retardation, which has continued or can be expected to continue indefinitely, substantially impairs an individual from adequately providing for his or her own care or custody, and constitutes a substantial handicap to the afflicted individual.” The definition excludes dementia that is primarily caused by degenerative brain disorder.

“Serious and persistent mental illness” means a “mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and that may be of lifelong duration.” The term includes “schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability or of alcohol or drug dependence.”

“Degenerative brain disorder” means the “loss or dysfunction of brain cells to the extent that the individual is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs.”

Furthermore, the new Act clarifies that courts may authorize guardians to give informed consent to a ward’s voluntary medical examination, medication including appropriate psychotropic medication, and medical treatment that is in the ward’s best interest, if the guardian has made a good-faith attempt to discuss each action with the ward and the ward does not “protest”—to make more than one discernible negative response, other than mere silence, to the offer of or recommendation for each action. “Protest” does not mean a discernible negative response to a proposed method of administration of each action. Determining the ward’s best interest requires guardians to consider the invasiveness of each action and its likely benefits and side effects. A power of attorney executed before an incompetence finding remains in effect after a guardian’s appointment, unless a court for good cause revokes it, and the guardian may not make health care decisions that the health care agent could make. Finally, persons found incompetent retain the power, without the guardian’s consent, to give or withhold consent to psychiatric treatment and medication.

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