Imagine a case where a SCOTUS justice had some form of dementia and it was well advanced. Advanced enough to make them unable to function in the world without help. Despite that, they refuse to step down from the Supreme Court. They insist they are fine (which, for the sake of this question, assume they are not).
Can a spouse or someone with power of attorney resign their seat on their behalf (is medical power of attorney sufficient)?
Would it take more such as a court order that the person is diminished and in the care of someone else? Would that be sufficient?
I don’t know, but there was at least one impeachment of a federal judge for more or less exactly this reason.
Certainly impeachment can be done but these days we can imagine the justice not being impeached because one party didn’t want them replaced by whoever gets to do that (in the case of the OP the president).
It’s an interesting question. I did a little online searching and I couldn’t find a clear answer.
Here’s the two general principles I found:
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A durable power of attorney allows you to do anything on behalf of the principal that they could legally do themselves.
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But there are some exceptions.
The first would say yes. But the second says maybe no.
I found some of the exceptions: you can’t vote on behalf of the principal; you can’t sign an affidavit on behalf of the principal; you can’t revise the principal’s will; you cannot perform any act which requires a professional license which the principal has but which you do not.
That last one says, for example, that if the principal has a medical degree and has the legal right to issue a prescription, you cannot issue a prescription on their behalf. And that one might be relevant here. Is resigning from a judicial post considered to be part of the professional duties of that post? If so, then you could not do it on somebody else’s behalf.
Yeah, I suspect a modern-day level of partisanship would turn this sort of situation into a massive clusterfuck worthy of a Christopher Buckley novel.
Great answer. Does the new message board allow upvotes or gold stars or something?
That was a good answer (even if it did not resolve the question).
Thanks.
Power of attorney is a creation of the law, and in the US, all law is subject to the Constitution. The Constitution gives the option of resignation to the justice and the justice alone, and so no lesser law can give anyone else that power.
Thanks!
Great point and, I suspect, the right answer for this question.
If this ever became a question for the court I would bet money that would be their answer (they’d never say it but I doubt they’d ever want to give anyone else the power to remove them from the court aside from impeachment).
This happened in Canada, but probably has some relevance… I guy I knew was diagnosed (after a series of issues - headaches turning into strokes and loss of muscle control) with a progressive brain disease leading to early dementia. His sister, who was then diagnosed by DNA as having the same disease, was told to resign by the province’s judicial board. The issue was, they did not want to have a series of appeals down the road stating “the judge has incipient dementia and may not have been able to adequately decide my case”. Not sure how that issue affects the Supreme court and their ability to control their own members. After all, there is no further appeal and as mentioned, the only recourse for a SCOTUS member is impeachment. I presume the Chief Justice cannot even tell another member not to participate in a case. I suppose the “nuclear option” would be to refuse to hear any cases until the case was dealt with; or have the person committed (is that possible?) locked up so they simply cannot attend court. Can power of attorney be used to have someone removed to a secure facility?
The problem isn’t when they have no capacity, but when they have mildly diminished capacity and may not be able to reason to the depth required.
I cannot find the example but IIRC there was a time where a justice was losing his/her marbles but was still on the court. The law clerks filled in for the justice as much as possible while the justice was “encouraged” to take a day off here and there. I don’t know specifics but basically everyone tried to work around it as best they could.
William Douglas had a pretty serious stroke in 1974 but he refused to resign for almost a year. (He didn’t like Ford and may have been hoping he could last until a new President was in office.)
IANAL, but in my state no, a spouse can’t resign your employment for you.
You only have power of attorney for someone if that person gives it to you before any incapacity occurs. And then only in the specific spheres stated in the power of attorney, financial, real estate, business, care of a minor. How likely is it that a SC Justice would have done this? Specifically about her seat on the Court?
Medical Power of Attorney (also signed before any incapacity), only gives power of decisions about health care and then only if the provider in their judgement decides the person is unable to communicate their own decisions. Not about finances, employment, legalities, etc.
Again, a court would have to decide that the person was incompetent to make decisions for themselves. That is a very, very high bar. And who would be a judge that would have the moxie to do that to a Supreme Court Justice? A Guardianship decree does allow the guardian to make any decision about the person but by the time a judge would grant a guardianship employment has long been gone out of the picture.
I am sure there is a process for impeaching a SCOTUS. I have no idea what it is.
Can’t a court grant it to you if you can show the person is not capable of conducting their own affairs?
No, a power of attorney has to be granted by the principal while they are of sound mind.
What a court can do for somebody who is already mentally incapacitated is appoint a legal guardian for them.
Are the legal guardian’s abilities more limited?
No, not in my experience as a nurse operating with health care powers of attorneys. Powers of attorney are granted by the person while the person has full capacity. POA’s essentially say “Whack A Mole can sign my stock option orders for me because I can’t be there or I don’t feel like it or I can’t be bothered to show up at the real estate closing. These POA expire Dec 31, 2020”.
A judge can grant such powers but they aren’t powers of attorney, as far as I know. Specific state bar association web sites usually have good information about a specific state’s laws, as do many law school’s web sites.
So what happens when someone does not write a medical/durable power of attorney before they become mentally unstable enough that they cannot sign a legal document or participate in their care?
The doctor has a huge dilemma if medical care decisions need to be made. How that ensues is very laborious and treacherous for physicians. Just ask one. They can do it but they hold their breath and most often ask other physicians to collaborate with them in determining that this is warranted. Which is how we wind up with people on life support beyond almost all reason when some one hasn’t left either a durable health care POA or a living will or somehow designated an alternate decision maker. If family members disagree, then a legal process has to be initiated and a guardian appointed.
Wikipedia consulted. The process for impeaching a SCOTUS Justice is exactly the same as for the President or other high offices, including other federal judges.
Speaking from personal experience, people are often willing to grant a large benefit of a doubt when there is no evidence of ill intent and nobody is arguing the point. I was given a durable power of attorney for my father. A lawyer wrote it up and we had my father sign it. But quite frankly, if anyone had argued the point, they would have had an easy time showing that my father was no longer capable of understanding such a document or making decisions like this. But the reality was we were all acting in my father’s best interests so everyone pretended he was mentally competent enough to sign.