La. Admin. Code tit. 22 § XV-1337

Current through Register Vol. 50, No. 11, November 20, 2024

Section XV-1337 - Mental Incapacity to Proceed

A. The attorney should be familiar with procedures for a determination of mental incapacity to proceed under the Louisiana Children's Code and other provisions of Louisiana law.

B. Although the client's expressed interests ordinarily control, the attorney should question capacity to proceed without the child client's approval or over the child client's objection, if necessary.

C. If, at any time, the child client's behavior or mental ability indicates that he or she may be incompetent, the attorney should consider filing a motion for a competency commission.

D. The attorney should prepare for and participate fully in the competency hearing.

E. Prior to the evaluation by the commission, the attorney should request from the child client and provide to the commission all relevant documents including but not limited to the arrest report, prior psychological/psychiatric evaluations, school records and any other important medical records.

F. Where appropriate, the attorney should advise the client of the potential consequences of a finding of incompetence. Prior to any proceeding, the attorney should be familiar with all aspects of the evaluation and should seek additional expert advice where appropriate. If the competency commission's finding is that the child client is competent, where appropriate, the attorney should consider calling an independent mental health expert to testify at the competency hearing.

G. The attorney should be aware that the burden of proof is on the child client to prove incompetency and that the standard of proof is a preponderance of the evidence.

H. If the child client is found incompetent, the attorney should continue to represent the child client's expressed interest until the matter is resolved.

La. Admin. Code tit. 22, § XV-1337

Promulgated by the Office of the Governor, Public Defender Board, LR 37:2605 (September 2011), Amended LR 45410 (3/1/2019).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148