The Lawyer as Caregiver: Child Client's Competence in Context

INTRODUCTION am the father of a two-year-old girl. In my more lucid moments, I want to letmy daughter, Sarah, explore the world. Still, I try to stay no more than a quick dive across the room away from Sarah during her explorations. When Sarah is twelve-years-old, my feelings will probably not be much different. In my lucid moments, I will probably want Sarah to make her own decisions and her own mistakes. I am sure, however, that I will not be able to entirely suppress the impulse to dive across the room. At first blush, the role of the lawyer for children seems radically different from that of the parent.' Some commentators argue that the lawyer by definition is an agent. As an agent, a lawyer is responsible to another person-the principal or the client. The client, as principal , controls the lawyer, as agent, by expressing preferences upon which the agent'acts. Under this view, if the principal expresses no preferences, the agent has no basis for action. Similarly, if the agent believes that the principal is incompetent to make a decision, the agent's proper course is withdrawal. In cases involving children, such as custody, abuse and neglect, and delinquency proceedings, lawyers confront the issue of competence regularly. 3 As a result, lawyers representing children in such proceedings must confront questions about the legitimacy of the lawyer's role. This Article addresses how lawyers representing children should define competence, and what the lawyer's role should be when a child client appears to be incompetent. Competence, defined broadly as a person's ability and right to make decisions, is always a difficult issue. Specific conditions-mental retardation , Alzheimer's disease, or psychoses stemming from schizo-phrenia or manic depressive illness-fuel concerns about the competence of people with mental disabilities and senior citizens. 4 The literature on substantive law regarding children is even larger than the commentary on lawyering. (analyzing gender stereotypes in images of "bad mothers" accused of child abuse). 4. Lawyers should presume, however, that both senior citizens and people with mental disabilities are competent. For commentary on competence and attorney-client relationship, see Anthony V. With regard to children, however, the issue of competence raises special problems. The law deems minors to be incompetent in many contexts. 5 In legal proceedings such as custody and child welfare the law tends to view children below a certain age, say, twelve, as incapable of making decisions …