ELLSWORTH – A Southwest Harbor man found incompetent earlier this year to stand trial on a manslaughter charge has been released from custody and is being allowed to live where he wants with almost no restrictions.

Frank Rees, 76, originally was charged with manslaughter and aggravated criminal operating a motor vehicle while under the influence of intoxicants in 1997 after he allegedly struck and killed a Tremont man who was walking over a bridge on Route 102.

Superior Court Justice Andrew Mead dismissed the charges in January after determining that Rees suffers from a mild form of dementia and is incompetent to stand trial.

According to state health officials, Rees’ dementia, however, does not qualify as a mental illness. For that reason, he cannot be placed under guardianship and must be released from custody.

On Monday, after being held in jail and mental institutions for the past 18 months, Rees walked out of the Hancock County Jail a free man after Superior Court Justice Ellen Gorman dismissed an assault charge against him. The assault charge, unrelated to the manslaughter charge, was thrown out on the same grounds as the dismissed manslaughter charge.

A state forensics expert has concluded that Rees needs supervision, and even his attorney has tried to get him into an assisted living situation. Despite efforts to get Rees, who has been convicted previously of assault and has a borderline deficient IQ, into a supervised situation, he has refused to be helped and is living on his own.

Hancock County District Attorney Michael Povich said Monday that he was confounded by the situation.

“I can’t believe this,” Povich said. “I can’t believe a system based on logic ended up with a coin constantly landing on its edge.”

Rees was accused of killing William Porter Jr., 38, in October 1997 as he drove his Cadillac across the Route 102 bridge over Bass Harbor Marsh that separates Southwest Harbor from Tremont. Rees was found to have a blood-alcohol content of 0.20 percent at the time, according to Povich.

Jeff Porter of Tremont, William Porter’s brother, said Thursday he feels the system has failed him and his family.

“We’re very frustrated, of course,” Porter said. “I just hope he doesn’t hurt anyone else. He can’t continue to get away with this stuff.”

At a competency hearing last June, attorney Kevin Barron of Boston, at the time representing Rees, told Justice Francis Marsano that an evaluation of Rees conducted by the Boston Veterans Administration Hospital in 1978 concluded that Rees, who was injured while serving in World War II, has suffered from dementia since 1975. A psychologist testified at that hearing that Rees has an IQ of 71. According to Taber’s Cyclopedic Medical Dictionary, an IQ of 71 is considered borderline deficient.

Rees had been held at the Augusta Mental Health Institute and the Bangor Mental Health Institute for much of the past 18 months while experts periodically evaluated his mental capacity to determine if he is likely to improve, according to Povich. The remaining assault charge against Rees, which stemmed from a November 1999 incident in Sullivan, allowed state officials to keep Rees in custody, either in jail or in a mental health institution, while attorneys tried to find a supervised living arrangement for Rees, the district attorney said.

In the Sullivan incident, Rees was accused of offering a woman $2,000 for sex and grabbing her arm and kissing her neck, he said.

Rees’ attorney, Jeffrey Toothaker of Ellsworth, said Thursday that officials secured a spot at a nursing home for his client, but no one could order him to live there.

“We found him an assisted living center, but he refused to go,” Toothaker said.

According to Povich, Rees still has his apartment in Southwest Harbor and likely will continue living there.

Toothaker said the only restriction against Rees, who also was convicted of an assault charge stemming from a February 2001 incident in which he reportedly exposed himself to a woman in an elevator, is that his driver’s license is suspended permanently.

“Mr. Rees, after considerable efforts by all, is a free man,” Toothaker said. “But he still suffers from dementia.”

Povich said that Dr. Ann LeBlanc, director of the State Forensic Service, had evaluated Rees’ condition for the courts and recommended that he live in a supervised setting.

“She tells it as she sees it,” Povich said. “He needs assisted living.”

LeBlanc said Thursday that the Department of Mental Health and Mental Retardation can involuntarily commit someone to a mental institution if they pose a danger to themselves or to others or they cannot take care of themselves due to mental illness.

Dementia, however, is not considered a mental illness because it is not treatable either through therapy or medication, LeBlanc said.

LeBlanc said that she does not have the authority to decide for the Department of Human Services that someone should be placed under the department’s guardianship. That is something DHS decides independently, she said.

Karen Elliott, an official in DHS’s Bureau of Elder and Adult Services, said Thursday that the department can go through the court system to pursue guardianship of a person if that person lacks the capacity to take care of their personal or financial affairs.

“It has nothing to do with whether they are a danger to themselves or others,” Elliott said.

Elliott, who declined to comment specifically about Rees’ case, said a physician must determine for DHS that a person is unable to take care of themselves in order for DHS to pursue guardianship of that person. If the physician decides that person can take care of themselves, DHS does not pursue such guardianship, she said.

Povich criticized DHS for not doing more to try to make sure Rees remained supervised in some capacity.

“DHS could have tried,” Povich said Monday. “In this case, they didn’t.”