Substance Abuse and Guardianship

Guest Contributor: Gary Zalkin, Esq., LICSW

Substance abuse is an illness that affects the whole family.  It can be a very painful process to see a loved one struggle with an addiction.  Guardianship and Conservatorship can be helpful in some cases but not necessarily in others. Gary Zalkin, a mental health attorney and psychotherapist, offers information and resources on substance abuse and the role of a guardian or conservator in helping a person with addiction.

1. What is substance abuse?

There are many formal definitions of substance abuse, though one used by many psychiatrists and psychotherapists is that it is an unhelpful pattern of using substances that leads to clinically significant impairment or distress, and that includes either, 1) an inability to perform at work, school or home,  2) repeated use of the substance(s) in ways that put one in dangerous situations (such as DUI), 3) repeated legal problems from using the substance(s) (such as DUI or getting charged with assault while intoxicated), or 4) repeated use even though it leads to continuing interpersonal problems.

2. Can the court appoint a Guardian for someone who has difficulties that stem from addiction?

Yes.  The criteria for appointing a guardian changed in July 2009, allowing the court to appoint a guardian for someone who has:

A clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.”

The statute broadly provides for guardians to be appointed based on a clinically diagnosed condition, which would include substance abuse or dependence. The more important issue may be whether the symptoms of the addiction are debilitating enough to meet the legal standard.

3. Can the court appoint a conservator for someone who has difficulties managing their money and property?

Yes. The new statute for appointing a conservator is similar, allowing for appointment of a conservator when two criteria are met. The individual must be unable to manage their assets appropriately because of:

  1. A clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance, or because the individual is detained or otherwise unable to return to the United States; and,
  2. Either:

a. The individual has property that will be wasted unless a conservator is appointed; OR

b. Funds are needed to support the individual or others entitled to their support, and conservatorship is helpful to obtain or provide funds.

4. When might it be helpful to have a guardian or conservator appointed for my loved one who has an addiction?

All cases are different, so it would depend upon your particular situation.  One issue you may wish to consider is what the harm is that you are trying to prevent.  If the individual’s addiction leads them to spend money unwisely perhaps by spending their money on substances or refraining from paying for necessities  then a conservatorship may be very helpful to protect their assets and allow them to have their assets used to pay their bills.  Similarly, if the individual is unable to consent to, and so is at risk of not receiving, necessary medical care then a guardian may be very helpful.

5. When might guardianship not be helpful or appropriate?

If the goal is to prevent an individual from using substances, then guardianship may not be as immediately helpful as one might like.  While a guardian can withhold consent for a doctor to prescribe drugs inappropriately and can direct third parties to take certain actions  perhaps directing a hospital to disclose medical information a guardian’s direction to an individual to attend AA or to stop using substances may only be as effective as the individual’s willingness to comply.

6. Can a guardian sign a person under guardianship into a locked substance abuse facility?

At this point it is not clear but it appears that a guardian may not have that authority.  The 2009 guardianship statutes removed a guardian’s authority to sign individuals into facilities, such as psychiatric hospitals, that are licensed by the Department of Mental Health.  The new statute also added the requirement that a guardian must have received specific authority by the court before being able to sign an individual into a skilled nursing facility.  It certainly appears that the spirit of the statute would not allow a guardian to sign an individual into a locked substance abuse facility against their wishes.

7. Is a guardian needed in order to compel an individual into an inpatient substance abuse program?

No.  Concerned family members, whether or not they are guardians, can ask a judge to order an individual into rehab.  This process, known as a Section 35 commitment, allows someone concerned about a family member’s substance abuse to appear before a local district court and request that the individual be brought before the judge.  If the judge agrees, an order will issue for the local police department to bring the individual to the courthouse.  Upon arriving, the individual will meet with the court clinician, after which the judge will hear evidence regarding whether or not an individual regularly uses substances to the extent that, (1) There is a likelihood of serious harm from their substance abuse; and, (2) Either, their substance abuse substantially injures their health or substantially interferes with their social or economic functioning, OR they have lost the power of self-control over the use of such substances. If the court finds the above applies, it can order the individual into a substance abuse rehabilitation facility for up to 30 days.

8. Can the court appoint a spendthrift guardian based on substance abuse?

Before the laws changed in 2009, the court could appoint a spendthrift guardian if it found that an individual misused assets because of excessive drinking, gaming, idleness or debauchery of any kind.  However, the new statutes require a clinically diagnosed condition in order to have a guardian or conservator appointed, so the appointment of a spendthrift guardian is no longer an option.

9. If the individual becomes sober can the guardianship or conservatorship be removed?

If an individual is sober and their functioning is no longer affected by substances then the court can terminate a guardianship or conservatorship.  An issue to consider, in light of relapses often being a part of the recovery process, is how long the individual should be sober before it would be helpful to ask the court to terminate the authority.

10. Where can I find more information and help?

These sites may provide helpful information:

Gary Zalkin is a mental health attorney and psychotherapist practicing in Wellesley, MA.  He focuses his practice on helping families who are struggling with addictions and other illnesses by pursuing guardianship, conservatorship and appropriate treatment.  He also consults with families regarding setting limits and family meetings.  Attorney Zalkin frequently writes and lectures about mental health law.

Disclaimer. The MGA website is maintained exclusively for informational purposes and does not constitute legal advice. Visitors to this web site who have a legal problem should always consult an attorney for legal advice. Viewing or using the information on the website does not create an attorney-client relationship. The guest contributor’s appearance on this website is solely for informational purposes and does not constitute a referral or endorsement of their firm or business, agency or organization. The third party web sites are listed solely as a convenience, and their listing does not imply endorsement of the agencies or organizations.

© 2012 Massachusetts Guardianship Association. All Rights Reserved