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Guardianship/Conservatorship for a Mentally Ill Person

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Guardianship/Conservatorship for a Mentally Ill Person

One of the challenges faced when attempting to treat or assist an individual suffering from a mental illness is a lack of insight into having such an illness. The individual may deny suffering from a mental illness and therefore refuse treatment or the assistance of a family member or loved one, insisting that he/she can function independently, despite evidence to the contrary. The individual may prevent others from accessing medical and financial information, thereby making it impossible to speak to care providers and financial institutions to protect, advocate and plan for the future. Even if the individual has the capacity to sign advance directives such as a Power of Attorney or Health Care Proxy, he/she can either refuse to do so or revoke those documents after execution. The circumstances might require a more restrictive type of intervention.

Presenters

Carolyn Wolf
Executive Partner
Abrams Fensterman, LLP

Transcript

- [Carolyn] Hello everybody, nice to meet you on audio. Welcome to this program today, entitled guardianship, conservatorship for a mentally ill person. I'm Carolyn Reinach Wolf, I'm an executive partner at the law firm of Abrams Fensterman in New York, director of the mental health law practice here in New York, a practice that I created, it's very unique across the country. And among other clients that we have, including hospitals and outpatient centers, and mental health professionals, I work pretty exclusively with families who have mentally ill or substance use disorder or both family members, helping them navigate through the very complicated and not always very supportive mental health system. By way of background, I started as a hospital administrator. I was a director of risk management at one of our city hospitals in New York. I then went to law school and I created our mental health law practice. And among the topics that we're gonna discuss today are the issue of working with a family who has someone who has mental health issues, and whether guardianship in New York or other states, or conservatorship as it's called in yet other states is appropriate in a situation where we need to get someone's services, help, financial management, and so on. I'm gonna use the terms interchangeably. Again, some states use the term guardianship, others use conservatorship, but they're really the same thing or similar, depending on the state in which we find ourselves. In addition, each state law is different, but similar. In this area, it is governed by state law, except for the uniform guardianship statute, which we will talk about later on in the program. And just by way of overview, okay, so by way of overview, the guardianship/conservatorship proceedings for an individual suffering from a mental illness will be the major part of our discussion. We're gonna talk about the legal standard in bringing one of these applications, and specifically how it relates to somebody with a serious mental illness, related mental health issues, and or substance use disorder disorder, autism spectrum. And sometimes there are medical reasons why people exhibit mental health symptoms and so on. We'll talk about the state differences. We'll talk about how to ascertain whether there are functional limitations by the person in order to meet the legal standard. We're gonna talk about examples of powers that we will need to obtain for the guardian, whether it's in the personal needs or healthcare area, or property management, financial management. And we'll end with a discussion about the mental health toolkit, of which guardianship/conservatorship is a major part. So in terms of guardianship or conservatorship, it's a legal proceeding by which a court can appoint and oversee somebody who I call a legal adult decision maker, or a legal decision maker or guardian for another adult who, because of their incapacity or other disability, is unable to manage his or her own affairs. And the court in most states can appoint what's called a personal needs guardian or some related designation who's gonna make decisions for the person with regard to medical care, where they can live, whether they can drive a car, whether they can travel, what services to put in place, whether it's case managers or mental health professionals, or medical professionals, dental professionals, and other support services that might be needed for that individual. The court can also appoint what's called a property management or financial management guardian who can manage the individual's financial affairs, pay bills, set up a budget, apply for benefits, coordinate with the personal needs guardian, or can be both in order to pay for those services that the guardian may determine is necessary in order to provide for services and other benefits for an individual, in this discussion, who has a mental illness or related mental health issues who can't manage these affairs on their own. By way of history, guardianships were initially used for people who were elderly, who had mental illness or developmental disabilities, but mainly they were for an older population, focusing on placement, such as a nursing home for the elderly, assisted living, and placement in other sorts of facilities, as well as things like Medicaid planning, financial management and so on. Over time, the statute has been used more and more, especially in my practice, for a younger population who have serious mental illness and related mental health issues, but may not be suffering from more geriatric related issues, such as dementia or Alzheimer's, or different from people who have developmental disabilities from birth, and the limitations that may be caused by that. So what are the legal standards? And they're pretty much the same across the country, although it's very important for people listening to this program to consult their own individual state law. In New York in particular, our guardianship statute is under the mental hygiene law, article 81. And the standard means is a determination of incapacity, which requires clear and convincing evidence that the person is likely to suffer harm because they're unable to provide for their personal needs, unable to manage property and financial affairs, unable to adequately obtain services, or inadequately obtain financial management. But in addition to a determination of incapacity, the person also needs to be shown to not be adequately able to understand and appreciate the nature and consequences of such inability. And in New York, as in many other states, this is based on a functional assessment of the person, or what are called functional limitations. Functional limitations in general has come to mean difficulty with income and spending appropriately, adequacy of obtaining food, clothing, shelter, inadequacy to manage their personal hygiene, issues of cleanliness and safety of the home. You know, very often people who are hoarders present as being a danger to themselves or others. And even though that may not be the legal standard for guardianship or conservatorship, hoarding can in fact limit a person's functional limitations or functional abilities based on their physical environment. Spending monies and so on. Physical functioning can, you know, can someone see, hear, walk, manage their mobility appropriately and in a safe way. And then included in functional limitations are issues such as their mental status. Is the person oriented to reality? Do they have memory issues? Can they reason appropriately? And that in turn goes to whether they can understand and appreciate their inability to manage their, whether it's personal needs or property management. So it's very important when assessing whether a case is appropriate for a guardianship that functional limitations be looked at. Different than an involuntary commitment standard, for example, which goes to the issue of substantial risk of harm, imminent risk of harm, danger to self or others. Guardianship is not meant to be an involuntary hospital commitment. It's meant to be more longstanding. It's meant to address the total needs of the individual. Again, whether they're medical needs, navigating through their living environment, obtaining medical treatment as appropriate, whether it's medical or psychiatric, and dealing with financial issues, do they have trust funds that come due, and we may not want somebody to gain access to large sums of money. Do they have inheritances that are coming due, And we don't want them to have large sums of monies at their disposal. Can they set up a budget? Can they use good judgment or appropriate judgment in obtaining housing, and issues within that housing, get certain medical services, support services, and so on. The law in most states requires that guardianship or conservatorship be the least restrictive form of intervention. In other words, the powers that are granted by the court need to be only those powers that are necessary for the person. So it's not a laundry list of somebody coming in and managing every aspect of that individual's affairs. Because there are some people even with functional limitations who can manage their monies for example, but not be organized enough to know they need to make doctor's appointments or shop for food or pay certain bills. On the other hand, somebody may be very good at that end of things, but can't manage their finances, or abuse their ability to gain large sums of money and not use it appropriate. So it has to be looked at by the court as to exactly what the person's needs are, and grant only those powers, again, that are the least restrictive form of intervention. So we may give some powers to a guardian that are necessary and appropriate, but maybe not others because the individual can manage those him or herself. And it's only those powers that are necessary to provide for the wellbeing of that person that should be granted by the court. In addition to the least restrictive form of intervention, the powers must also afford that person the greatest amount of independence and self-determination, in light of the individual's understanding and appreciation of the nature and consequences of those functional limitations that we've outlined. So again, the law seeks to, in most states, allow the person to have that amount of independence that they're able to manage on their own, may not have in the past, and may now be able to, or sometimes a situation where they were managing, but going forward, due to the nature of their mental illness or any physical limitations or other reasons why going forward they may not be able to manage, and understand that they can't appropriately manage those limitations that are required for everybody's day to day survival and life operations. Conservatorship and guardianship, as I've stated, is pursuant to state law. And these statutes vary from state to state. So again, it's very important to know what your state law is. For example, I just had a family reach out to me from the state of Washington, Washington state. Their statute actually splits the terminology. So for personal needs, it's called a guardianship, or a guardian is appointed. And for the financial side of things, it's a conservatorship, or a conservator who is appointed, or who needs to become the quote unquote guardian of the person. In Connecticut, it's called conservatorship, as it is in California. As I have said, in New York and New Jersey it's called guardianship. So again, it's not so much the words that are used, they pretty much are the same thing, except for the statute, as it outlines the legal standard in that state, and the powers that may be able to be ascertained, and the criteria and legal standards that have to be met. So it's very important to know what your individual state law is. In New York, for example, the term determination of incapacity is based only on anecdotal or observational evidence. In New York there are no medical affidavits or testimony that are required. And unlike states like New Jersey, where medical affidavits are required to certify that the individual lacks capacity, it can become very challenging when you need these medical affidavits in light of the person's ability to consent or not to consent to their legal information. The fact that a person may not want the appointment of a guardian and therefore doesn't want anyone looking into their medical issues or their psychiatric issues. Getting a physician to work on these cases with you, to basically become adversarial to an individual when a medical affidavit may be required. So it actually makes our jobs easier in those states that don't require medical affidavits than in those states that do. Again very important to know what your state requirements are in terms of evidence and documentation that needs to be submitted to a court in order to obtain guardianship or conservatorship for an individual. In those states that require that kind of medical certification, we have to think about what are the HIPAA laws or that individual state confidentiality laws, how we may need to go to court and ask for an independent evaluation. And then what happens is the issue of the legal answer versus the practical answer. So legally speaking, as in New Jersey, for example, we need a medical affidavit. But practically speaking, how do we get someone to either authorize release of that information or cooperate with a medical evaluation, if it's an independent medical evaluator, when generally, if they understand some of the process, they may not to be too excited to have a guardian appointed for them. It becomes almost an admission against interest for the individual. And that's why in those states that don't require that, it makes it somewhat easier to utilize people who have surrounded the individual and are familiar with their history, with their behaviors, with their symptoms, live with them, or have a close relationship with them, so that they can provide anecdotal or personal observations, even though they may not be medical or psychiatric experts in a particular field. Now, in 2007, the federal Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, I know that's a mouthful, was passed. And part of the reason was this issue of differing state laws when it comes to guardianships or conservatorships. People move around from state to state. People have a guardianship started in one state and then go to another state, or it started in one state, and for whatever reason, they end up in another state. And so the uniform adult guardianship statute provided a mechanism for resolving or addressing these multi-state jurisdictional disputes in the area of guardianship. In New York, it's been codified under mental hygiene law, article 83. Again, you need to know within your state, whether in fact such a statute has come into being. The way the guardianship protective proceeding act works is that states have to sign onto it. So some states may not have signed onto this federal act, and therefore we wouldn't even have the option to have a more efficient and effective way to move one proceeding from state to state. So certainly available is a listing of those states that have signed on to the Uniform Adult Guardianship Act. The problem comes when one state has signed on, but the other state has not. And then we're back to starting all over again with a brand new application, should it be a state that has not signed onto this particular federal act. Under the Uniform Adult Guardianship Act, it provides a simplified transfer process when an individual who is subject to a guardianship or conservatorship moves to a new state of residence. The intention is that litigants wouldn't have to start all over in a new state with a new finding of incapacity and so on. It still continues to provide that there are legal papers that need to be filed and proceedings brought, but it was meant to shorten the amount of time and expense and reevaluation, again, when someone moves from state to state and changes their residence. It allows a guardian to register out of state orders with a local court to lawfully exercise authority in the enacting state. So for example, a California court appointed conservator or guardian wants to sell real property that's located in New York. The New York court can under this uniform act recognize the California guardian's authority. Now that's not an example of someone who actually moves state to state and changes their residence, but it involves somebody who started in one place, had a guardian appointed, but still has connections or some nexus to another state, here, the example is California to New York. So specifically with regard to guardianships or conservatorships for people who suffer from a mental illness, in New York, as in many other states, anyone brought before a court in an initial proceeding is called an alleged incapacitated person. And when we talk with families about whether we need to initiate a guardianship, we talk about some of these criteria that we would be looking at. So in terms of age, and it's usually 18 to somebody a hundred plus years. We can in New York bring guardianships for people under 18, but generally it becomes the issue of an 18 year old or greater, 20s, 30s, 40 year olds and so on. Keep in mind too that serious mental illness manifests generally between the ages of 18 and 22, 23. We see a lot of this in the college age population. And so that's generally the time that families begin to notice that there is a change in mental status among their loved ones. Now it certainly can be much younger in age, and it could be older, but again, 18 to 22 is really the bullseye of when a serious mental health begins to manifest, and the symptoms of that mental illness become more noticeable. We have to look at whether that person lacks insight into their mental health issues and or the need for psychiatric treatment. Does somebody have the ability to say, I know that I have bipolar disorder, for example, and that I need medication and other treatment, or I know that I'm having issues of depression or anxiety, and I need to seek some sort of treatment. People, to recognize that they have these mental health issues, that things are not going the same way as they had before in terms of their thinking, their acting, their behavior and so on, and comes into a full blown mental health issue that needs some sort of treatment, whether it's medication, electroshock therapy or electroconvulsive therapy, or it may be other types of therapy, depending on an individual's diagnosis and treatment needs. There's also the issue of impaired judgment, which can cause people to present a danger of harm to themself or others. And again, danger is not generally the legal standard for the appointment of a guardian or a conservator, but it certainly becomes an issue and comes into play when we're looking at or evaluating whether a person might have the potential to need the appointment of a guardian or conservator. Do the symptoms of their mental illness, for example, impair their judgment so that they can become a danger of harm? Going outside in the middle of the night, wandering in traffic, becoming so disorganized they don't eat properly or clothe themselves properly in the weather, going up to people and acting out, causing disruption in a building. We see a number of condo and co-op boards come to us because somebody is suffering the symptoms of a mental illness and causing disruption, and other sorts of issues in the building in which they live, or the building in which they're housed and they live with their families. So that is something that we look at. We often have them come to us and seek some sort of remedy in order to get control over the situation, and for everybody to live peacefully together. We can look at things such as verbal aggression or threats, or physical violence or threats of violence. Again, that's not the specific criteria for the appointment of a guardian, but can go towards building a case for one. In fact, I don't like to, or want to equate mental illness with violence. People with serious mental illness are more often the victims of violence than they are the perpetrators of violence, but there are some times where people get symptomatic and may have some sort of aggression associated with those particular symptoms. As I've said, an inability to care for activities of daily living, eating properly, dressing properly, caring for themselves, taking prescribed medication that's necessary for a medical issue, for example. The person may neglect their need for medical or dental care. They may have medical issues for which medications are prescribed or other treatments, and they may be too disorganized to know when to take the medication or when to go for a follow up appointment, or any other procedures that might be necessary to diagnose or to monitor a medical issue such as diabetes, high blood pressure, cardiac issues, and so on. Sometimes people get hurt and don't know how to go for follow up care. They have a fall that results in a broken bone, may have other sorts of accidental injuries, and because of the symptoms of their mental illness, may not be able to call 911, or go to an emergency room and so on. And sometimes there's a requirement of police intervention. As I've said, people harassing their neighbors, frivolously making police reports, accosting people on the street out of paranoid or delusional beliefs, and so on. And over time, the increase in the need for police intervention may require the appointment of a guardian in order to get control of the situation and to handle it more appropriately. So in terms of functional limitations, we can talk about property management or financial management. There are many cases where the alleged incapacitated person has significant income or assets. And whether they're manic and frivolously spending their money, or they've come into a huge amount of money through a trust or an inheritance, and because of their functional limitations, they're unable to discern what is the appropriate and safer way to spend that money, utilize that money, and so on. Sometimes people because of their symptoms give away large sums of money, or put the money in locations where it can't be found. So one of the major property management powers that might require the appointment of a guardian or conservator would be to marshal their assets and gain control over those assets for and in the best interest of the individual. The AIP can't manage their income or pay their bills. Often we see cases where they're in rental arrears, there's unpaid mortgages, or utilities get shut off, health insurance lapses, and other risks to an individual for them being unable to manage monies and assets, and so on. Maybe the AIP can't obtain or maintain appropriate housing, they're at risk of eviction due to landlord-tenant issues. Hoarding is a particular concern, destruction of property, nonpayment of rent. All of these can go into the argument or the evidence used to demonstrate that the person has functional limitations that cause them not to be able to live safely and appropriately in a community setting, in a building, in a house that they're responsible for, and so on. And along with these functional limitations on the property side, maybe the alleged incapacitated person can't live independently without some sort of supervision. Again, going back to these functional limitations where they can't pay bills properly, take care of their home, fix appliances, or heat or air conditioning that's necessary, maintain the home in a livable way, not only for themselves, but for their neighbors as well. Property management powers that we see brought when somebody brings a conservatorship or a guardianship application. Well, among those powers might be to marshal and manage assets and income, as we've discussed, set up a monthly budget, apply for state, federal, veterans, or other benefits. Often people are eligible for these benefits, but either are too disorganized or unable to obtain those benefits, or may understand that they are eligible or want these benefits, but for whatever reason, they're refusing to sign the application or complete the paperwork, or obtain the necessary documentation in order to obtain those benefits. We see a lot of cases where people are eligible for Medicaid, for example, and other federal benefits or state benefits. But again, they can't get, they don't have the ability to apply for these, fill out the paperwork, get the necessary documentation, and sign on the dotted line in order to be eligible. The property guardian can establish a supplemental needs trust. This is one way to protect assets and have funds that are available to the individual used for their benefit. So it's very important to discuss with your clients the issue of possibly establishing a supplemental needs trust in the immediate time, by a guardian or by a family, and also in a will, if somebody may be coming into large sums of monies, once they've passed away. The power can be had to retain counsel to prosecute or defend any civil judicial proceeding. And it could also include retaining accountants, financial managers, again, depending on the assets that are available currently or in the future for an individual. We need the guardian to have the ability to retain and pay legal counsel or other financial experts, again, like an accountant or a financial manager, or to prosecute or defend any civil judicial proceeding, sometimes even a criminal proceeding. That might be necessary in order to protect the individual. The powers can also include access and authority to disclose confidential financial records when it's appropriate. For example, in filing tax returns, mortgage, and so on, there may be a need for the disclosure of these financial records. A guardian can sign and file income tax returns when the individual's functional limitations prevent them from being able to do that. And a power that is often asked for is the authority to direct the sale of any real property. Now, in most states, there is a process that goes along with that. A guardian can't just put a house up for sale and sell it right off the bat. But most states have some sort of guidelines that the guardian has to follow to get an assessment, an appraisal, sell it for fair market value, and so on. Very important to find out what your state requirements are, if you're a guardian, or if you're seeking guardianship or conservatorship, to know, if there's real property involved, how that's going to work going forward, if it needs to be sold or mortgaged, or have some other sort of intervention with regard to that real property. What are the functional limitations as they relate to personal needs? Well, in that case, it may be somebody unable to manage their activities of daily living, personal hygiene, bathing, cleaning their home, laundry, food shopping, and cooking, and especially in situations where there's, whether that's challenging, sometimes people don't have the ability to understand, to go out and order food, or obtain food, or issues, for example, in very high heat, and we've seen so many heat waves this past summer where people get dehydrated and don't always understand and appreciate how it is necessary for them to obtain the appropriate hydration, and so on. Sometimes people refuse medical, dental, or mental health treatment, refuses to allow family members to speak with physicians, mental health providers, access medical or mental health records and so on. And that goes to the issue of the federal HIPAA statutes. All states have state confidential requirements. One major thing that guardianship buys a family when they want to bring this proceeding is access to confidential information, so that the guardian can work with the treatment team on issues of current hospitalization or outpatient treatment, discharge planning, a plan going forward to provide for the individual's medical or mental health treatment and so on. And in terms of functional limitations in the personal needs area, sometimes the individual can engage in dangerous behaviors due to their mental illness or other mental health challenges. For example, leaving a stove on, pulling a smoke alarm off the wall, barricading him or herself in a room, wandering the streets, walking in traffic, driving erratically, and so on. So these are some examples of, again, dangerous behaviors that translate back into functional limitations in order for us to make a case for the need for a guardian. In addition, the guardian can be given the powers, and keep in mind that a guardian or conservator can only act within those powers that are given to them by a court. So the order in judgment at the end of a guardianship will outline what those powers are, and a guardian can only act within those designated powers. In most states, there may be changes that take place, so that the guardian may need to go back to court, or the petitioner may need to go back to court, to expand their powers or sometimes to limit their powers, if people make progress in their mental health treatment, medical issues and so on. So among the personal needs powers that are possible to be given to a guardian or conservator is a determination as to whether the person should travel and can travel, whether they should have a driver's license to operate a motor vehicle, the ability to choose a place of abode, maybe their living situation is not appropriate for them at this time, and they need to be moved or placed in another location, hire and pay for a mental health care manager or geriatric case manager, home health aides, visiting nurse service, and so on. Very often, people are unable to maintain their homes. And sometimes when the proceeding is brought, and court personnel and others have been able to enter their home, we see a lot of issues regarding hoarding, or a need for exterminators or other forms of home neglect that have not yet been addressed, that the guardian now needs to take over and to gain control of, again, in the best interest of the alleged incapacitated person. Other powers might include access and authorized disclosure of medical, mental health records, consent to, or withhold consent for medical or dental or mental health treatment, communicate with physicians, arrange for and encourage compliance with medical, dental, mental health treatment. However, in some states, as in New York, there are certain aspects of a person's care that cannot be delegated to a guardian as it relates to psychiatric treatment and medication. So for example, a guardian can't automatically involuntarily commit someone, or can't override an individual's refusal of treatment. Now in New York, as in many other states, there are other parts of the mental hygiene laws that compensates for that. There are involuntary commitment statutes. There are statutes that provide for what are called treatment over objection cases, generally within a hospital setting. So that is a limitation to the issue of bringing a guardianship and having a guardian appointed to manage someone who suffers from a serious mental illness or substance use disorder, and so on. There are some states that do allow for a guardian to involuntarily commit or to override an individual's refusal of treatment. Very important is to know what state law is in that regard. Keep in mind also that, again, we have the legal answer and then the practical answer. So even if a guardian does have the power to provide services, choose a place of abode, when we're dealing with a younger, more mobile population, that becomes a challenge. Because, yes, the guardian can have the power to decide where they're gonna live or where they're gonna get treatment, or can volunteer to accompany them to a psychiatrist office or a drug treatment program or whatever it might be. But when you're dealing with somebody who's younger and mobile, how do you get them to do that from a practical perspective? And that's where we get into the issue of what leverage we have, how we can negotiate through that, how we can help the guardian in working with a family to bring about the result that we're looking for. I personally am not a fan of families being the guardian, although the court does give preference to families, and families certainly can ask to be guardian. However, I like to get families off the direct firing line. I find that it works much better when it's the court-appointed guardian, someone we've nominated and know and trust, because sometimes bringing in a third party to take on that role is very helpful. Keep in mind too that a guardian doesn't have the same requirements of confidentiality that a doctor does or a lawyer or a clergy, so that guardians don't necessarily need to shut out families, but can communicate with them, share information, inform them. And it's very important to make sure that in drafting your final orders, that you take that into consideration when introducing a third party guardian who's not a family member in a particular situation. The other advantage that we've seen in this area of dealing with the younger population, mental health issues and so on, is that it does send a very powerful message. It says to the person and puts in front of them in writing and through the process, you are not able to manage your affairs right now, and we need to go to a court and a judge in order to help you manage those affairs. So it sends a powerful message. And again, it puts in writing and verbally and through the process itself how unable that person is to manage their affairs and the need to take this step in order to bring it before court. It also, as I've said before, in my opinion, takes loved ones off the firing line, gets them back to not being in the role of a guardian or an overseer, or a person who makes the individual do something, but they can go back to being mom and dad, son and daughter, brother, sister, a neighbor, without the power of the court, and without having to get into that struggle that often will occur when someone is appointed a guardian or conservator and is not too happy about that idea. And finally it changes the incentive, or it changes, it shifts the legal burden. The legal burden is on the petition or the applicant to get a guardian appointed. But in most states, as in New York, the legal burden then shifts to the individual for whom a guardian has been appointed to go back to that court and seek to discontinue that guardianship. So when you have a situation where somebody has been granted guardianship, where a guardian has been granted, where we've shown it's the least restrictive alternative, but the person certainly is not happy about the idea or agrees with the idea that they need this kind of oversight, but the legal burden shifts, then to that individual, to be able to go back to the court and show the court that they no longer have those functional limitations, they have a job, they're back in school, they can manage a budget, they're living appropriately and safely in an apartment or in a house, they're caring for themselves, they're in treatment. All of those reasons why someone can go back to court and present a case to show that they no longer need the guardian. Or sometimes that the powers that the guardian has been given can be restricted or reduced because the person is now on their way to being able to have less functional limitations or no functional limitations at all. So I find that shifting that legal burden does actually provide for a lot of incentive for an individual, again, particularly somebody who's younger, more mobile, has the ability to get into treatment and to recover, it gives that incentive in order to go back to court and present a strong case to the court that they no longer need this guardian. So among the tools in our, what I call our mental health toolkit, in addition to guardianship, there are other options that we may bring to bear prior to asking for the appointment of a guardian or a conservator, or we might need to do it in conjunction with. And none of these options are mutually exclusive. So we can be in the throes of requesting a guardian, and we can also seek out other interventions in our, what I call our mental health legal tool kit. And among these, for example, are psychiatric hospitalization, assisted outpatient treatment, otherwise known as AOT, important to know whether your state in fact has an AOT statute, because not all states do have these. The majority of states do, but again, you need to be familiar whether that's even an option in your state. Mental hygiene warrants, advanced directives, such as a healthcare proxy or a power of attorney, and keep in mind in that area as well, in some states, an advance directive can be used to address psychiatric intervention and treatment. In others it cannot, sometimes the mental hygiene laws override the public health laws. So again, very important to know what your state law is in this regard. Often we need to seek orders of protection, whether it's a removal from a home in a stay away order or a refrain from order, sometimes people are in the throes of an episode and they become, they harass or they stalk, or they threaten, again as part of their symptoms. And sometimes there's fear or need for protection of other family members, whether they live together or have close personal relationships. Again, very important to know what your state laws are in terms of orders of protection. They can be obtained through the criminal process or through family court, and there are certain criteria that have to be met in order to have standing to obtain an order of protection. In addition, there are other options that are available in our toolkit that are not listed here. The use of a mental health case manager, which we use a lot, in order to have wraparound services or assistance for an individual, as well as in-home psychiatric interventions that we do. We actually go into someone's home with the support from the family, or a loved one, a neighbor, someone with legal authority to enter the residence, coming with a team, including a psychiatrist, security people, sometimes my case manager, accompanied by the mental health lawyer, and offering the person the option of getting hospitalized, going voluntarily, or the need to contact law enforcement and ambulance and so on. So these are all part of the mental health legal toolkit that we have open to us in my practice and in others. Psychiatrically, psychiatric hospitalization, an individual can be hospitalized voluntarily or involuntarily, pursuant to the state mental hygiene laws. If they pose a substantial risk of harm, or some states use the verbiage imminent threat of harm or danger to self or others, it will vary from state law to state law. Hospitalization can allow for a psychiatrist or other mental health professional to evaluate any medical or mental health issues, establish a diagnosis and a treatment plan, if there is that. Sometimes when we are dealing with a particular individual or family or case that comes to us, we don't know exactly what we're dealing with. Is it a psychiatric issue? Is it a medical issue that's resulting in psychiatric symptoms? Is it a substance use disorder? Or other related signs and symptoms that we just don't know or understand. So there are many times where hospitalization at least gets us a diagnosis and a plan so that we know what we're dealing with, and we can make recommendations to a family for how to carry forth continued treatment. Treatment over objection, a leading case in New York is Rivers versus Katz. The idea, the case stands for the idea that just because you suffer from a mental illness, doesn't necessarily mean you lack capacity to give or withhold treatment. It's the informed consent standard. Many states have similar case law or statutes that provide for judicial intervention and determination when somebody is refusing psychiatric treatment. The issue to be decided is whether or not the patient has the capacity to make a reasoned decision with regard to their need for treatment, their consent or their refusal. Assisted outpatient treatment, as I've said, is a valuable tool for individuals who are non-compliant with their treatment or services in the community and are frequently hospitalized. It goes to the issue of non-compliance, repeated hospitalization. The idea behind AOT was to stop what's called the revolving door. Someone gets symptomatic, meets the legal criteria, gets hospitalized, gets treated, either voluntarily or involuntarily, their symptoms stabilize, they are discharged from the hospital, they lack an insight or refuse to continue their treatment, they get symptomatic, they come back to the hospital, and that revolving door just continues. AOT was meant to try and stop or limit that revolving door, so that there is community supervision with the goal of preventing or early identifying a relapse or a deterioration in their condition. In New York, as in most other states, the criteria is they have to be 18 years of age or older, suffer from a diagnosed mental illness, cannot survive safely in the community without this type of oversight or supervision, have a history of lack of compliance with treatment. In New York, it's two prior hospitalizations in the last 36 months due to non-compliance, or one act of serious violent behavior to self or others in the last 48 months. Again, though, due to non-compliance with treatment. Categories of service in these orders can include medication, therapy, periodic blood testing or urine testing, depending on the treatment that's being prescribed and used, medication to detect drug or alcohol use, random drug testing, day or partial day programming, substance abuse treatment or counseling, housing, or supervised living, financial management, and so on. Mental hygiene warrants are those warrants, they're civil warrants, the person is not picked up, is not arrested, I should say, or put in jail, but they are picked up by an arm of the police, brought before court, the court holds a hearing, they're provided counsel, and the judge has to make a determination as to whether the person poses an imminent risk of harm to themselves or others. The court can then remand the individual to a hospital for an evaluation, and it becomes the responsibility of the hospital to determine whether that individual should be admitted or not. Orders of protection, as I said, are issued by a court to limit the behavior of someone who harms or threatens to harm another person. It's used to address safety issues, including those that involve mental illness or behavioral health issues that may be frightening to those around them or a danger to themselves. In New York, family courts, criminal courts, and supreme courts can issue orders of protection. Again, important to know what your state law would be in order to obtain an order of protection. There also needs to be a relationship between the people. It's usually a family relationship or some sort of relationship where the person is tied to the other person who may be threatening, and so on. It may be directed the person to either stay away from them, or refrain from certain types of communication, or included, it could be a removal and a stay away, somebody's a resident and they're acting out, and they're posing a risk and they need to be removed from that and placed in some other living arrangement, Advance directives, as I've said, they're legal documents that contain an individual's prior expressed wishes when they had capacity with regard to medical treatment or financial affairs, A healthcare proxy, living will, power of attorney for healthcare governs healthcare decision making. In some states, the person must be shown to lack capacity before that can come into being. Or a power of attorney, which means financial management, often a court will be notified that there are these advance directives and asks, well, if you have somebody who can make healthcare decisions and financial decisions, why would you need to bring on a guardianship. And guardianship or conservatorship goes much further than these advance directives may provide for. The powers are more specific, they're more broad based. You're dealing with an individual who is empowered legally and overseen by a court, whether it's for financial management or healthcare decision making. And keep in mind that these documents, the advanced directives, are revocable documents. So a person can sign one today and get angry or upset, or change their mind, and revoke those documents. So we discuss with patients, you know, or I'm sorry, with clients, our view that a guardianship or conservatorship is much more broad based, much more specific. Once a court has found incapacity, or the person has agreed to a guardian, it can't just be revoked at the whim of the incapacitated person. So it it's much more broad based, much more practical, carries less risk of not being available, and does have court oversight for the decisions that are made by the guardian. So there is both healthcare and financial protection for the individual in the case of getting a guardian or a conservator appointed. And that ends my time. So I'd like to thank you all for participating in this program, this is my contact information. Should you have any follow up questions or concerns or comments, I'm always happy to hear from my audiences. So thank you again, and thank you for participating.
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