The National Institute of Mental Health reports that mental illness affects one in five adults in the United States. What classifies as a “serious mental illness”? Serious mental illnesses are mental, behavioral, or emotional disorders that cause significant life impairment and limit major life activities. In 2021, 14.1 million American adults had a serious mental illness.
While the severity of mental illness varies, severe mental illnesses typically impact thinking, understanding, and perception. When mental illness becomes severe, it can impair decision-making. For example, a person with a psychotic disorder may hallucinate or experience delusions. A person with bipolar disorder may be vulnerable to scammers during a manic episode.
Watching a loved one deal with a mental illness can be painful. Family members often worry about access to mental health services, whether their loved one is receiving treatment, and if they have access to basic necessities like food, clothing, and shelter. Exploitation can be an additional concern for family members.The National Library of Medicine reports that people with severe mental illness are also at risk of financial exploitation.
For these reasons, guardianship may serve as a way to protect people with severe mental illness since the guardian makes decisions for the individual.
GUARDIANSHIP FOR AN ADULT WITH MENTAL ILLNESS
While many people with mental health challenges can live independent lives, there are those with severe impairments that require additional help.
Serious mental illnesses can cause incapacity. When a person with behavioral health issues cannot make personal or financial decisions or is unable to care for themselves, the court may step in to appoint a guardian. A guardian of the person oversees the physical well-being of the individual. Oftentimes a loved one will serve as the guardian, but some states have public guardianship systems or social service agencies that offer guardianship services.
Guardianship requires a finding of loss of capacity. States can differ in how they define this term. Some states also look at whether the person has trouble with activities with daily living (ADLs). ADLs include such basic daily tasks as bathing, dressing, using the toilet, and eating. Typically a person with a mental illness is incapacitated when they cannot understand information or communicate, per World Guardianship Congress.
TYPES OF GUARDIANSHIP
There are two types of guardianships: a guardianship of the person and a guardianship of the estate. The guardian of the person would be appointed to make decisions for the ward regarding, living arrangements, medical care, personal care and social relationships. The guardian of the estate (“conservatorship” in some states) makes financial decisions for the ward. The Court can determine whether one of these types of guardianships is needed and the other is not or whether both may be necessary.
In other cases, the court determines that a limited guardianship is appropriate. The guardian has limited decision-making authority. For example, a limited guardianship may allow the guardian to make treatment decisions only.
CHALLENGES OF APPOINTING A GUARDIAN
Although guardianship may protect a person with severe mental illness, asking the court to appoint a guardian comes with its challenges.
Establishing that someone is not capable of managing their own affairs can pose challenges. For instance, individuals with bipolar disorder may exhibit profound impairment during manic episodes, yet their behavior may fluctuate, complicating the court’s assessment of their need for a guardian.
Serving as a guardian of a loved one with a severe mental illness can also strain family relationships. Conflicts can arise when a loved one takes on dual roles of both a family member and a decision-maker. For this reason, some families decide to go with third-party guardianship.
The goal of guardianship should be to support the autonomy of the individual. If the court appoints a guardian, the guardian should consider and prioritize the wishes of the ward when making decisions.
AN ALTERNATIVE TO GUARDIANSHIP – ADVANCE DIRECTIVES
Individuals with mental illness and their families may wish to explore alternatives to guardianship. Less restrictive options, such as psychiatric advance directives (PAD), can empower individuals experiencing mental illness while still providing necessary support.
A psychiatric advance directive can ensure that an individual’s voice is heard even after they can no longer make or communicate decisions about their care. This type of advance directive protects autonomy and allows the individual to participate in their treatment. Someone with a mental illness can make a PAD when they are of sound mind. This document allows them to prepare for periods in which their illness becomes more severe. PAD consists of two parts:
Advance Instruction – the individual can state treatment preferences, such as preferred medications, treatment modalities, and facilities. The individual can also give consent for admission to a treatment facility. The instructions may also include how to handle practical matters like child care and employment in the event of an adverse mental health episode. Health Care Power of Attorney – a person with a mental illness can appoint a trusted person to serve as an agent. The agent has the authority to make healthcare decisions in place of the individual. For example, the agent could consent to treatment or transfer to a psychiatric facility.
THE IMPORTANCE OF SEEKING LEGAL ADVICE
A special needs planning attorney can provide representation in guardianship cases and help create a comprehensive plan for future care that protects the interests and autonomy of the individual with the mental illness. This can involve creating a psychiatric advance directive or even other alternatives.
Bromlow Law, PLLC and Laura L. Bromlow, are dedicated to the practice of Elder Law and Estate Planning. Our practice focuses solely on working with clients in these and closely related legal fields. Laura L. Bromlow is a Certified Elder Law Attorney with the National Elder Law Foundation. Bromlow Law, PLLC strives to enhance communication among family members and loved ones and to keep them all out of conflict so they can stay out of court. We want to help you keep your close circle safe!
Please contact our office today at (281) 665-3807 to schedule a free consultation to discuss your legal matters. We look forward to the opportunity to work with you.