Mental Illness and Guardianship

Mental illness refers to a range of medical conditions that may or may not significantly impact the quality of one’s life. Gary Zalkin, a mental health attorney and psychotherapist, offers information and resources on mental illness and guardianship, and when the appointment of a guardian may be helpful for adults who lack the ability to make effective decisions regarding their personal care, health, and safety.

1. What is mental illness?

Mental illness is not much different than other illnesses though, unfortunately, it can sometimes still carry some level of stigma.  In some sense there is no such thing as perfect mental health to the same extent that there is no such thing as perfect physical health.  Everyone has issues that they work with, and ideally their symptoms, whether psychiatric or more traditionally medical, do not impact their quality of life.  Serious mental illnesses typically do have some level of impact on quality of life, and can include, among others, schizophrenia and other thought disorders, major depression and other mood disorders including bipolar disorder, obsessive-compulsive disorder, panic disorder and PTSD.  Approximately 6% of Americans suffer from a serious mental illness.

2. How important is treatment for a person diagnosed with a mental illness?

Treatment for mental illnesses is generally just as important as treatment for more traditionally medical illnesses.  There are different kinds of treatment, which are sometimes used together, and include psychotherapy, group therapy, occupational therapy and psychopharmacology or medication.  With a combination of medication, therapy and support, between 70 and 90 percent of people with a major mental illness have a significant reduction of symptoms and improved quality of life.

3. When might guardianship be considered for someone with a mental illness?

Just because someone has a mental illness does not mean that guardianship would be appropriate or even helpful.  For the vast majority of individuals with mental illness the appointment of a guardian would not be wise and, because the individuals have the capacity to make decisions on their own, the court would not consider appointing a guardian.

The court may appoint a guardian for an adult who has a clinically diagnosed condition that leads them to lack the ability to make effective decisions about their personal care, health and safety. However, just because the court will appoint a guardian does not mean that it should.  Issues that families may wish to consider include the extent to which guardianship would be helpful and the extent to which it would be an unnecessary intrusion.

4. What are the different types of guardianship?

In general a guardian has some authority to help make decisions for another individual.  However, the extent of that authority depends upon what the judge orders.  Some types of guardianship include:

            a. Full guardianship.  The court can appoint a guardian with all of the authorities          allowed by statute, including making usual and customary medical treatment decisions as       well as housing and other personal decisions.

            b. Limited guardianship
As the name implies, a limited guardian’s authority is not plenary(full), and there are        areas in which the individual retains the authority to make their own decisions.  The   number of potential types of limited guardianships in any particular case depends only        upon the imagination of the parties and the approval of the judge.  A guardian can be     appointed with only very limited authority (such as only having the authority to consent       to medical treatment) or the guardian could have broader authority though limited in one      or more areas (perhaps indicating that the individual retains the right to vote or perform        other activities).  A limited guardianship can be narrowly tailored to be as least intrusive as necessary, with the shape of the limited guardianship in any case depending upon the      specific facts involved.

            c. Temporary guardianship
A temporary guardian can have any of the authorities of the other types of guardians, but            the authority is strictly time limited – usually to 90 days.  Before lapsing the temporary   guardianship can be extended or the temporary guardian can be appointed as a permanent         guardian.  It is also an option to have one person(s) serve as temporary guardian and then          have another person(s) serve as the permanent guardian.

            d. Rogers guardianship
A Rogers guardian is a guardian (either limited or full) who also has the authority to        monitor the administration of antipsychotic medication.  If the judge approves an        antipsychotic medication treatment plan, the individual can be provided antipsychotic medication, though only with the medications and dosages allowed by the treatment plan            and only until the plan expires.  Typically, antipsychotic medication treatment plans   expire annually unless they are reviewed sooner by the court.  Even if a treatment plan     does expire, the underlying guardianship continues unless the court terminates it. More        information about Rogers Guardianships can be found at             http://www.massguardianshipassociation.org/information/rogers-guardianship/).

5. When might a guardianship be helpful?

Guardianships can sometimes be helpful when an individual does not have the capacity to consent to necessary medical treatment, in which case they would be at risk for not receiving care in a hospital, a nursing facility or as an outpatient.  Similarly, if an individual were at high risk of being preyed upon by others then sometimes the court considers appointing a guardian to help advocate for that individual’s interests.  For example, if an individual is putting themselves in very dangerous situations by virtue of their illness then a guardian might be appointed to help with housing and treatment decisions.

Conservatorship, similar to a guardianship but involving an individual’s finances, is sometimes helpful if the individual is not able to use their funds to provide for their needs or they are at risk of having others take their assets.  More information about conservatorship can be found at http://www.massguardianshipassociation.org/information/conservatorship-of-an-adult/)

6. When might guardianship not be helpful?

Guardianship may not be quite so helpful when an individual is able to adequately meet their needs in a relatively safe manner.  Also, if the individual is opposed to the appointment of a guardian then loved ones might consider whether the benefits would outweigh the intrusion of having a guardian appointed.  For example, if individuals are able to have their needs met well enough to have some level of safety, regardless of their level of capacity, and they are strongly opposed to having a guardian, then pursuing appointment of a guardian may be counterproductive. In those cases it may be helpful to work together to find other supports so that the individual would not require a guardian or, perhaps less helpfully, come to an agreement regarding a particularly limited guardianship.

7. Can a guardian help commit an individual to a psychiatric facility?

No.  In 2009 Massachusetts law changed such that guardians can no longer sign individuals into psychiatric facilities.  (It is an open question regarding whether guardians can sign individuals into treatment for an addiction.  More information about this issue can be found at http://www.massguardianshipassociation.org/information/substance-abuse-and-guardianship/)

However, families continue to have the ability to pursue psychiatric hospitalization for a loved one if they believe that the individual is at imminent risk of harm in the community.  They may first wish to speak with the psychiatric emergency services team in their area (the contact information for the agency that serves a particular town in Massachusetts can be found at http://www.mass.gov/eohhs/provider/guidelines-resources/clinical-treatment/mental-health/dmh-offices/alphabetic-index.html#F

If the emergency services team believes that the individual needs to be evaluated for possible psychiatric hospitalization they will take steps to insure that the individual is brought to an emergency room by filing a “section 12” or “pink paper”, authorizing the police to bring the individual to a hospital for evaluation.

However, if a family is unable to find adequate help, and still feels strongly that their loved one is at imminent risk of harm, they may wish to pursue a section 12(e) commitment at the individual’s local district court.  This is a more difficult process, and it involves persuading a district court judge that the individual is in need of an immediate psychiatric evaluation.  If the judge agrees, an order will be issued to bring the individual to the courthouse.  The court will then appoint an attorney to represent the individual, and a hearing will be held to determine whether the judge should order the individual to the hospital for evaluation.

Please note that even if an individual is sent to a hospital for evaluation, either by a judge or by a psychiatric emergency services team, the emergency room doctor has discretion to decide whether or not to admit the individual.

8. Where can I find more information and help?

These sites may provide helpful information:

http://www.namimass.org/

http://www.mass.gov/eohhs/gov/departments/dmh/

http://www.treatmentadvocacycenter.org/

http://www.m-power.org/

http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B/ArticleV

Gary Zalkin is a mental health attorney and psychotherapist practicing in Wellesley.  He focuses his law practice on helping families who are struggling with issues related to mental illness and advising health care providers.  Attorney Zalkin frequently lectures and writes about mental health law, including the chapter on guardianship and conservatorship for the Mental Health volume of the Massachusetts Practice Series.

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