On demand 1h 23s Basic

Hot Topics in Mental Health Law

Start your free 7-day trial
* Claim credit(s) for one free course during your 7-day trial.

Hot Topics in Mental Health Law

When lawyers meet clients who need assistance with family members suffering from a mental health impairment, traditional legal responses need to be viewed and approached through an appropriate mental health lens. Lawyers must be aware of what unique tools are available and  how traditional legal resources can be adapted for an individual suffering from a mental illness.

Transcript

Good afternoon or morning, depending on your time zone. Welcome to Hot Topics in Mental Health Law. To the program for today. My name is Carolyn Reinach Wolf. I am an executive partner in the law firm of Abrams Fensterman, and I'm also director of the firm's unique mental health law practice. I actually created this practice. There are no other of this type of practice in the country, as far as I know. And our specialty and what we do is we concentrate in the area of clients and cases that are directly in line with mental health issues, substance abuse, autism spectrum, anything in the mental health space that requires legal intervention and consultation. We do discrimination cases, we do guardianship conservatorship cases. We consult on individuals capacity to consent and to participate in any sort of legal proceedings. We also represent a number of institutions, hospitals in particular in the New York area. And my particular niche is to work directly with families who have family members, loved ones who have serious mental health issues or anything related to mental health, mental illness and so on. By background, I was a hospital administrator and a director of risk management before I went to law school. So I have a pretty significant health care systems background, and that has helped a great deal in creating this practice and in advising clients and colleagues in the area of mental health law, both from a mental health legal perspective as well as a clinical perspective. Again, being versed in the health care system in general. Clients come to us to ask us how to help them navigate when they have a loved one who is about to or has already been in the mental health system. Consultations include getting a an extensive history background on as to an individual's mental health issues, mental health history, any legal issues that have come up. We also do criminal mental health cases. And to go through with these families, what are their rights? What are the rights of their loved one? When individuals turn 18, then they become legal adults. But many of them are not adults in the way we might think of it, self-supporting, have a job continued in school and so on. And so even though they may be legal adults and no longer minors in the legal sense, they may not be adults, as I said, as we might think of an adult individual. So what are the family's rights? What are the their loved one's rights? What are the options in the mental health legal system? The mental health criminal system. Any other systems out there that come to bear as well as what are the options in the clinical system? We have a vast array of referral network, mental health professionals, case managers, social workers, psychiatrists, psychologists who we rely on and collaborate with in order to formulate ultimately a plan for our clients. And that plan can include all of those details in our mental health toolkit, as I call it, that we will be talking about today. We're also going to be discussing the issues of capacity. As I'm sure you know, capacity can wax and wane. It's subject specific, and it also has a different legal implications and legal criteria depending on what in the legal system. We are seeking to determine whether a person has capacity, capacity to execute a will, capacity as to whether they might need a guardian or a conservator. Capacity to sign a health care proxy or a power of attorney and so on. And we'll be covering that in today's program. So, again, I would like to welcome you all to this program today. So in general, the course description for our webinar today, when lawyers meet clients who need assistance with family members suffering from a mental health impairment, traditional legal responses have to be viewed and approached through the appropriate mental health legal lens. Lawyers have to be aware of what the unique tools are that may be available in order to address these types of issues and clients legal, traditional legal resources and how these can be adapted for an individual suffering from a mental illness or a related mental health crisis. People who have physical issues or neurological issues can also develop mental health challenges. And these are areas that we counsel families and talk to them about what the options may be for their loved ones. It's an area that most lawyers are not. Burst in. We certainly are happy to advise and co-counsel cases in the areas of other mental health, of other legal specialties. We work closely with matrimonial lawyers, landlord tenant lawyers, co-op boards, trusts and estates, lawyers, financial planners. Other areas that touch on mental health issues but need the the concentration or the advice from those of us in the mental health field given that it is a somewhat unique area. Also, it's very important to understand the mental health laws in your respective designations or your respective states states. Most of these laws are state law or state governed, so it's very important for the audience to understand that even though I will give you some general overview as to how to approach this topic, it's very important that you know your own specific state laws. Yes, there are some federal laws such as the HIPAA confidentiality law, the FERPA law and the higher education area, which are federal. But most of the laws that govern these issues that we're going to talk about today are specific to state laws. So what are some of the areas that we're going to be covering today? One is what I have developed called our mental health tool kit. This will include legal options that are available in order to avoid and respond to a mental health crisis. And we'll talk about all the different options. Again, most of these will be state specific or state law specific. So it's important for you to be versed in what your state mental hygiene laws allow for or do not. But I can give you some general overview of these. Then we're going to talk about legal documents to help a client maintain stability. Advanced directives such as a power of attorney, a health care proxy. A living will. Release of confidentiality, consent and so on. And we'll talk about capacity to complete these types of legal documents to help the client make decisions to help their loved ones work with them and so on. But of course, capacity and consent are very important areas to be knowledgeable about and to consider when we are working in this particular area. We're going to talk about the issue of capacity. As I've stated, capacity to refuse treatment. What are the laws that can govern a refusal of treatment or a refusal of cooperation? Again, state law driven, directed to the state's mental health and hygiene laws. But individuals have a right to consent to treatment, a right to withhold treatment. When does the legal system have the ability to intervene when there is such a treatment refusal? And again, we'll talk about how capacity comes into play in those areas. And finally, we're going to talk about guardianship and conservatorship. Again, these are governed by state laws. Some states have guardian or what are called guardianship statutes. Some states have conservatorship statutes. There are some states, actually, that have a combination of both. One half of the equation is is a person called the Guardian. The other half may be a conservator. Important to know what your individual state laws are in this area and to follow the legal and the criteria of requirements in these types of statutes. So what are some of the options in what I call our mental health tool kit? Well, one is state case management services, and in this area referred directly to mental health case managers. There aren't a lot of them out there, but those who are specially trained to work with individuals who have mental health issues, substance use disorders may be on the autism spectrum, may have a medical condition that has thrown off some mental health issues and may cause individuals to have mental health signs and symptoms as a result of a medical condition. Our case managers are trained to intervene in these situations and to work as what I call the boots on the ground people. They are the individuals who will interact specifically with a person who has mental health related issues and help them to navigate through the mental health system, sometimes even the legal system. There are least restrictive alternative, in my opinion. It's a voluntary type of relationship, but they can act as that person's navigator or advocate. And their role is, of course, different than the role of a family member. Sometimes because of the family issues that go on or the family relationships. It's helpful to bring in a third party who is not a parent or not an adult child or not a sibling or not a spouse, but who comes with a set of experiences and training to help to intervene in a particular case involving somebody who is experiencing mental health related issues. The other option in our tool kit would be, of course, inpatient hospitalization. And in most states, inpatient hospitalization can either be voluntary, an individual can enter the hospital and say, I know I have an illness, I'm experiencing symptoms, I'm agreeing to be in the hospital and I will give over to you my issues and be admitted in order to obtain mental health treatment. That is the less restrictive alternative. Hospitals have a requirement to admit on a voluntary basis should that be clinically and legally appropriate. And of course, that is, as I said, the least restrictive alternative and the most narrowly tailored in language that we all understand. If an individual is not willing to come in on a voluntary legal basis, then there are situations where we have to admit somebody on involuntary status. And throughout the country, the criteria for an involuntary inpatient hospitalization is two prong suffers from a mental illness and poses, depending on the language in your state, either a substantial risk of harm and imminent risk of harm, a danger to self and or others. So again, important to know what the mental hygiene laws are in your state and what the specific criteria and language is in order to recommend or work with health care institutions on an involuntary commitment. Keep in mind that the danger standard doesn't have to necessarily rise to the level of homicidal or suicidal in many state mental hygiene statutes. Danger can be deemed to be somebody who, for example, is unable to care for themselves. Poor judgment, walking in traffic and due to whatever their symptoms are and putting themselves in danger, somebody who is not able to eat properly to manage their life affairs to the point of it creating a danger. Sometimes individuals are psychotic, paranoid thinking people will strike out at them so they might go to protect themselves or their loved ones. So it's important to see the whole picture of what the person's symptoms are that they're exhibiting. And for the clinicians to make a determination as to whether or not this rises to the level of quote unquote, danger to either themselves and or others. Of course, the highest level of danger would be somebody who may be suicidal or homicidal. And that, of course, needs to be considered when talking about an involuntary hospital commitment. Involuntary commitments carry with them certain periods of time, whether an institution is allowed to continue to keep them on involuntary commitment or have to convert them to voluntary or discharge a patient if they can no longer meet the legal criteria. In fact, psychiatry is really the only area of medicine that is so closely linked to the legal system. And this is in every state of which I'm familiar, which is most of them. So that patients, you know, because of the involuntary commitment statutes and the determination by a state that there may be a time where somebody presents a substantial or imminent risk of harm and need to be hospitalized. This is where the legal system and the clinical system overlap very closely. So, again, very important to know what your state laws are. In some states, there's also the issue of care and treatment benefiting a patient or a person in need of care and treatment in a hospital that's required or that will be beneficial. That is some of the language that we find in some state mental hygiene laws. And that also helps to create a picture of a person's need for hospital commitment. And finally, court ordered mental health evaluations. New York, for example, has a mental mental health warrant statute in New York in particular. And I know there are other states that have this available to them. We would go into court and present to a court the fact that a person suffers from a mental illness poses an imminent risk of harm to themselves and or others. The court can issue a warrant. I always advise clients that it is not a criminal warrant. They don't get arrested. They don't go to jail. It's a civil warrant. And the local law enforcement is given the task of enforcing that warrant, serving that warrant and bringing the person before the court, after the person comes before the court is assigned legal counsel by the court, then a hearing is held. It's a very adversarial proceeding. Families or other loved ones who know the person best would have to testify. And it's a it's a tool that we use when we really don't have a lot of other options. Of course, families are hesitant to want to testify in front of their loved one, but there may come a time where that's really the only option available to get their loved one the care and treatment that they need at that particular time. Outpatient treatment is also part of the mental health world. There are partial hospitalization programs. Independent output. Independent outpatient programs. And those are, of course, a less restrictive alternative when it's clinically appropriate for somebody to participate in outpatient versus inpatient treatment. Unfortunately, there are not a lot of programs out there. There are always issues of cost and cooperation of an individual. The only option, involuntary option we have in the mental health system is a hospital. Anything outside of a hospital system, for the most part has to be voluntary and agreeable on the part of the person in order for them to participate in outpatient treatment. It can certainly also include seeing a private psychiatrist or a therapist being in a program, residential therapeutic treatment programs, and so on. And also across the country and in the majority of states, we have what are known as assisted outpatient treatment programs. In New York, it's known as Kendra's Law. In other states, there are other named laws, assisted outpatient treatment or aot is actually a court ordered treatment program where someone comes under the jurisdiction of a court. There's a set treatment program that is developed for that individual. Some of the laws of the Aot laws include the requirement, as in New York, that everyone get case management. Some of these treatment plans can also include random drug and alcohol testing. It's it's an outpatient treatment law that is helpful. And one of the few options we have in the system to get a court ordered. A court ordered program for an individual in order to assist them in maintaining treatment, continue to take their medication, continue to go to therapy, continue to be in a program, of course, with the ultimate outcome to be stability, the ability to function in the outside space in the community and to be able to stay stable and out of the hospital. And that is really the idea behind or assisted outpatient treatment is to stop what's called the revolving door. What often happens is an individual becomes symptomatic, goes to the hospital, either agreeably or by court order, gets treatment, gets put back on medication or other forms of treatment, stabilizes, is discharged from the hospital, goes back outside, doesn't have insight or for whatever reason is unable to continue with their treatment. They decompensate. They become symptomatic, rise to the level of meeting the criteria for an involuntary commitment. And they're back in the hospital. And we have seen this over and over again, considered to be the revolving door. That was what aot or assisted outpatient treatment was meant to try and stem that tide and keep people well in the community as much as possible. And statistics have shown that these are actually very successful programs. And finally, orders of protection when there's a situation involving a family member who is in some way disruptive, sometimes threatening or violent, there are there is a need for orders of protection for the family members. Again, this is governed by state law, either in the criminal system or the family court system in some states, the surrogate system. But orders of protection in general come in two forms. One is called a refrain from order where the person is refrained from harassing. Threatening. Um, stalking and need to be in some way diverted from texting, emailing and so on, confronting in order to protect those individuals who are the recipient of the individual's threats or harassment or stalking. Um, violation of these orders often results in arrest and some sort of criminal prosecution. It is a violation of a court order. The other type of order of protection is a stay away order or what we call a removal and a stay away order where somebody needs to be physically removed from a home setting. And placed in an alternative living situation because they are in some way disruptive or a danger and so on, and they are not allowed to come within whatever the designated area is, whether it's home or office, two blocks, five miles, whatever the limitations are that are placed on the individual pursuant to an order of protection. Again, very important to know what your state laws are with regard to particular orders of protection in your individual states. So specific to our tool kit. What is this and what can be gained from utilizing these types of tools in this tool kit? Well, as I said earlier, what is case management? It's a coordination of services. It can be provided by state or local agencies, private agencies or an individual privately retained and paid case manager. It's very important for these people to have training in mental health issues, be able to work with individuals across the age spectrum. We have clients who are minors, who we use case managers for, or young people, young adults all the way through to an older age range. And it's important for case managers to have training specific to what your case requires. Keep in mind, however, that case management requires the individual, him or herself, to accept these services. We can't force someone. To be willing to work with a case manager. But often individuals are able to do that because, number one, it takes their family members or loved ones off the firing line. And number two, it is a somebody who does not come with the baggage and the emotional connection and the history that all family members have with one another. What can be gained from using case management? Well, number one, the individual, the case manager can assess the individual's abilities and needs. As my case managers are. They are trained to do these types of assessment. They're also knowledgeable about what legal standards are required, whether it's hospitalization or a mental health warrant. And they can become my eyes and ears as the mental health attorney to know when and if we need to put forward a more aggressive legal intervention. There's also their ability to make arrangements and advocate for services in this area can help with gaining benefits. Federal and state benefits, Medicaid, Medicare, SSI, SSDI and so on. And a well trained case manager has a knowledge of housing, which is very important in the mental health system. Somebody's ability to be housed in an appropriate placement, whether they need supervision, what that level of supervision might be, what type of housing. The financial implications of where that housing is going to be or whether they can be maintained in their home setting. Again, case managers are well versed in this area and can help the individual and their loved ones navigate through the housing system. The case manager can also monitor the individual in the community. They can see them every day, every other day, certain hours of the day, or have staff to actually assign people to live with that individual for whatever period of time is required in order to make sure that they take their medication, are safe in the community, follow up on treatments, whether on appointments, whether it's medical, psychiatric or other types of interventions that might be necessary in the community. And they can assist with daily living skills and obtaining appointment teaching life skills, how to cook, how to go food shopping, how to fill out paperwork for a GED or higher education or obtaining employment and so on. So a case manager who's well trained and specifically trained in the area of mental health can be very helpful in bringing about services and support for individuals and families in the community. I'm in terms of inpatient hospitalization, as we've talked about. Important to know your state law and the legal standards that go with that. Various mental hygiene or laws contain specific standards and procedures for civil commitment in an inpatient psychiatric setting. Hospitalization actually allows a mental health professional, in many cases to evaluate these mental health issues, establish a diagnosis and treatment plan if that's appropriate. There are times where families come to us and describe what's going on with an individual, but we don't really know what we're dealing with. Is it a psychotic illness? Is it related to a brain injury? Is it a personality disorder? Is there something that's treatable or not? And so in the course of taking a history, there are many things that we don't know. Maybe they've never been in treatment before this. Maybe their behaviors are related to some sort of medical condition. Oftentimes we have we don't have a good starting point because we really don't know what we're dealing with. And often a hospitalization, although it may not be long in time, does at least allow for a clinical professional to do an evaluation to make recommendations for a treatment plan to come up with either a working or a rule out diagnosis and to help give us the start of a roadmap as to how we can formulate a plan specific to that individual's needs and requirements. And we talked about voluntary versus involuntary involuntary hospitalization. And in fact, some states have emergency involuntary commitments. If an episode occurs where the individual poses an imminent or substantial risk of harm. Again, important to know what your individual state laws are. The language of the statute for a voluntary may be suitability knowledge of care and treatment and asking for such again specific to the the case law as it's outlined in your mental hygiene statutes. For mental health awareness we've talked about is a court mandated mental health evaluation. The limitations in most states to such warrant is the court's ability to remand a person for a psychiatric evaluation. But the judge or the court does not have the authority to actually rule on whether the person should be committed or not. So what happens is the person can be directed to a psychiatric emergency room for an evaluation. In some states, there may be also a number of hours where the hospital can keep them on a hold, an involuntary hold. But it's up to the clinicians in that specific institution to determine whether they meet the criteria then for a voluntary or involuntary hospital commitment. So of course, the jurisdiction of the court may be limited by your individual mental health warrant statute. Important to know what this is and what the limitations are, but often it may be a last resort in getting someone to an emergency room for an evaluation. Um, also in our tool kit as we talked about outpatient treatment options, there are partial hospitalizations, Intensive outpatient psychiatric treatment in some jurisdictions can be voluntary or court ordered. It provides a heightened level of observance therapy and medication management. There are day programs and also available in the outpatient world or residential therapeutic programs. This is where an individual lives and gets treatment in a structured program. For whatever period of time the program determines is appropriate. It can be from weeks to months, sometimes for a year, depending on the program and depending on the cooperation and the success in meeting the needs of the individual. The challenge in getting someone to a residential therapeutic program, of course, is that it has to be a voluntary agreement on their part to go to the program and to agree to remain in the program until the clinical individuals in that program deem them able to be discharged. And that's often where the challenge comes, because the individual doesn't want to do that. Most of them are very costly, although more and more of these residential therapeutic programs are taking insurance. So that has been a great boon and a great help to those of us who make these referrals. Important to have people with expertise in this area give families the ability to really understand the appropriateness of the program, what their reputation is. One of my big beefs in all of this is that there isn't a lot of regulation or quality control. So it's very important for families to be educated themselves and advised as to whether this program is appropriate. Their reputation in the community and what services they can provide. In particular, from my experience, I know there are a number of drug treatment programs that profess to be able to also treat serious mental health issues or psychiatric diagnoses. That is not often the case. I direct individuals to go to programs that have a stronger psychiatric expertise, but may or may not be able to manage a substance abuse disorder as well. So again, very important to have clients do their research, rely on expertise, whether it's case managers, clinicians. We have a very wide network and referral base and we have come to know many of these programs through our clients giving us feedback as we talked about assisted outpatient treatment or aot. Important to know your state law. Most of them require a history of noncompliance with treatment as part of their criteria. It will be court mandated and there is a psychological aspect to these programs. Often individuals have to go before the court. A judge will tell them, I'm signing a court order. This is what your treatment plan is. You need to continue with this treatment plan when you've left the hospital. And for those individuals who are respectful of the judge of the court of the system will more often than not follow the requirements of their plan. Of course, that doesn't work for everyone or it's not the case every time. But there is an effect to having a judge and a court order and a hearing to get patients to move closer to accepting aot. It provides a framework of legal consequences for noncompliance. In New York in particular, the Aot program can bring someone back to a hospital emergency room for a 72 hour hold if there's noncompliance that rises to the level of becoming symptomatic yet again. But the ultimate goal of this is to assist an individual in receiving care while living and functioning in the community, which, of course, as I'm sure you all know, is the least restrictive alternative and is the most productive. If an individual can live and work in that system or in the community. Orders of protection. As we've talked about, state family courts have jurisdiction. Often the criminal courts have jurisdiction. These are acts which constitute either disorderly conduct, harassment, stalking, menacing, reckless endangerment, endangerment or other acts between members of the same family or household, or are what's called inter-relationship. So in order to get an order of protection in many jurisdictions, there needs to be a relationship, a spouse, family member, someone living together, depending on how the state law defines that relationship and so on. It's a civil proceeding unless it's obtained through the criminal court system. In most states, the order of protection involves filing what's called a family offense petition, and that's through the family court in many states. The court also has authority to issue what I called a stay away or removal order. In some states, it's called an exclusion order where the police can actually come and remove an individual from the household. I recommend because families, of course, don't want to take such a drastic step that if we're going to do a removal or a stay away order, that there be someone on the receiving end. I usually use my case managers or sometimes my security detail in order to help the family work through this and have an alternative for their loved one to live. So they're not just removed from the home and placed on the street, but we've set up a hotel room or a an Airbnb or some other living situation, usually with some oversight and supervision in order to work through why we needed the order of protection, where we can go from there and so on and so forth. So it's a very supportive proceeding. But in extreme cases where it's untenable for people to continue living together or acting in a certain way. It may be our only alternative. Then we have what are called management of an individual's affairs. When an individual has the requisite mental capacity, they can execute legal documents that are containing their expressed wishes and directives, whether it's for medical care and treatment or financial management. And often there's a lot of confusion among clients as to which can govern what. For example, a health care proxy in some states, it's called a health care power of attorney that can govern medical care and treatment, consent for treatment, oversight and so on. Powers of attorney for the most part. And again, it's important to know what your individual state laws are, but they, with the requisite capacity, can manage financial needs and financial requirements. I'm the requisite capacity has been discussed in an in-depth separate class that was available, that is available for your viewing or listening through the Quimby system. We did a whole webinar on capacity to make a will to sign a health care proxy, a power of attorney, a living will and so on. The limits of clinician client confidentiality are defined by state licensure rules, professional codes of ethics, state and federal law. The HIPAA law is the federal confidentiality protection of medical information. There are specific HIPAA release forms that are available or a specific authorization to release information. Keep in mind that confidentiality rests with the individual or their legally authorized representative. So without consent or authorization from the person under the statute who's allowed to consent to release of their confidential medical information, that information cannot be given over a health care proxy or a power of attorney for health care gives authority to an appointed agent to make certain medical decisions when the principal becomes unable to do so. Again, state law will govern what the criteria are, what the limitations are, and what an agent is allowed to do or not do. A power of attorney allows a principal to appoint an agent to make financial decisions either immediately or when the principal becomes unable to do so, or when a specific situation may arise, be it age, be it away on vacation, be it six months from now, for example, whatever it is, the individual can appoint that person under certain circumstances and conditions. A living will is an informed medical statement which allows an individual to set forth in detail their preferences for medical treatment procedures. End of life treatment. I will caution people to be careful of a living will because often the language can be contradictory or confusing, may not fit the circumstances that a particular time may be ambiguous. And as a former hospital administrator who have sat on many ethics committees when confronted with a living will, often we can't always follow the wishes because we actually don't know exactly what the person wanted. So I encourage clients to sign health care proxies or powers of attorney for health care. Certainly the principal should have a conversation with the agent they're appointing so that the wishes are known specifically. In some states, their laws require that certain things be reduced to a writing. For example, in New York, there has to be a writing about a person's wishes requiring artificial nutrition and hydration. But in terms of a living will alone, I caution people to be careful of completing them and putting in the language that they do. Treatment over. Objection. This is another legal option that we have in the system. Patients have a right to refuse treatment with psychiatric medications or other forms of treatment on an inpatient psychiatric unit. There are limitations on the patient's right to refuse, however, which goes back to the issue of capacity which will be defined hopefully in your individual state laws. And capacity, generally speaking, is the ability for someone to factually and rationally understand and appreciate the nature of the proposed treatment, the consequences of refusing such treatment, the risks, benefits and alternatives to the treatment, and thereby make what's called a reasoned decision regarding the proposed treatment for them. When an individual is found by medical providers to lack the requisite capacity to make such an informed decision, the medical provider may commence a legal proceeding to treat an involuntarily hospitalized patient over their objection. And again, this is governed by state law in New York. It's governed by a court of appeals or the highest court in New York case. In other states, it may be governed specifically by statute. Important to know what the law and requirements are. And there are also the possibility that a guardian or health care agent can or cannot consent to treatment over their objection. In New York, for example, a guardian can't override a patient's treatment refusal as the Guardian. There are other systems and parts of the mental hygiene laws that can compensate for that, but they themselves are not allowed to do that under New York law. Some states do provide for a guardian to be able to come into an institution and say, I'm the guardian. I can give consent for this even over the individual's refusal, and then the health care institution can provide the treatment. So it's very state law specific. Guardianship or conservatorship, as we've talked about. A guardian or conservator, depending on your state law, is a legally appointed individual appointed by a court who can oversee legal which oversees a legal decision making. Decision maker for another adult who, due to their what are called functional limitations in some states, is unable to manage their own affairs. And guardianship or conservatorship is usually split into two sides. One is a personal needs guardian or a health care guardian, or a person who can oversee personal decisions to make determinations about their medical care, where they can reside. Can they travel, can they drive a car and so on. In large part, we seek to get guardianship for personal needs or individual needs because it can a guardian can also be empowered to access medical information and interact with medical professionals. It gets you around the HIPAA statutes or the state confidentiality laws, but it's a power given to the person by a court to allow them to access medical information and interact even without the consent of the individual And the other side to conservatorship or guardianship is property management or financial management. In that side of guardianship or conservatorship, the person can appointed by the court can make financial decisions, defend legal proceedings, apply for state benefits, federal benefits and so on, can marshal assets, can interact with a trustee, can set up budgets, can agree to pay certain medical bills, or withdraw the person from any financial requirements. When it's appropriate. We see many situations where an individual, because they don't have the requisite capacity or understanding or their symptoms, impair their ability to manage having a credit card or they may be very manic, for example, and engage in excessive spending. And families come to us and talk about how their loved one has incurred huge amounts of credit card debt, for which they may not be. The family member may not be legally responsible, but for which they feel a responsibility to their loved one to have these bills paid in some way and so on. And a financial guardian or conservator can work with credit card companies in order to eliminate some of the either debt requirement or can work out agreements with a credit card company to try and get a handle on the excessive spending or the individual's inability to pay those credit card bills and so on. So again, it's very important to know your specific state law in this area. Another area that I want to talk about that is not in your boilerplate packet are the issues of duty to warn or Tarasoff cases. That's another hot topic, if you will, in the mental health legal world. Tarasoff was a case in California where an individual told their therapist that they were angry at and wanted to kill their girlfriend. The therapist believing that under the state confidentiality laws, they couldn't warn the individual at risk. He ultimately did murder his ex-girlfriend. The family came back and sued the state of California, the therapist and others believing that the therapist, knowing this, had a what's called duty to warn the individual or their family member about the threat that was being made against her. In some states, they're called duty to warn statutes and some case they're called Tarasoff statutes. That's the case in California. But in most states, the requirement is that the threat must be specific, directed at an individual with a particular plan in mind by the person who is making the threat. And then what happens on the receiving end? And we get these calls all hours of the day and night. The question is judgment and predictability, which none of us can do in terms of predictability. The discussion with the client or the mental health professional is how serious do you think the threat is based on your judgment and experience? And of course, you'll never know 100% and be sure whether the threats been made over and over or is this a new threat? Does the person to the individual, to the therapist knowledge have access to a weapon? Does the person make the threat every time they're in therapy or once a month or once a year? And of course, we can never predict the ultimate outcome. So we have to make a decision based on the history that we get from the therapist as to whether or not we think the person will carry out that threat. If there is a good faith effort made to gather this information and a good faith belief that the person may carry out the threat, then in most states, if not all, the individual therapists can notify the that person who is at risk. So again, it has to be a threat to an individual person, and the therapist has the ability to override the confidentiality statutes and warn the person. Keep in mind that some states have what's called a must warn statute. A therapist hears from an individual patient that there is a threat made against an identified individual and there's a plan. They must warn that person. Often these statutes also, by extension, say you can warn or give notice to law enforcement, and there's a requirement that they do that. Other states are what I call may warn statutes. And that's where we have to make a judgment when we get a call from the therapist who is our client. Again, that's different than the family member that we might be representing here. It's a therapist who may may be representing or an institution where there's a situation where we have to figure out which side of the line to come down on. Do we preserve the confidentiality and adhere strictly to the HIPAA and state confidentiality statutes, or do we. Go forward with the Warren statute and we warn that individual. And it's often a situation where we get to what I call playing pick your liability. Would you rather be sued if that's the case for breaching confidentiality or wrongful death or serious harm? And in my opinion, I would rather take the risk of being sued for or my client having some sort of legal action against them for breach of confidentiality versus wrongful death or serious injury to an individual. It's based on judgment, a discussion about credibility, foreseeability, judgment, and then ultimately a decision made as to how to proceed. Very, very important. And think about this because of my risk management background, in large part, very key in these situations, as in all situations when we advise clients or work with individuals or families, is documentation, documentation of our records as attorneys, documentation as the clinician as to what the facts of the situation is, as we know them to be, what discussions were had as to the decision making issue, and then what decision ultimately will be made in a case of duty to warn cases. We want to lay out the information or the facts that we have that we gathered, the advice we're giving our clinician client. The clinician needs to document those conversations as well as best as they know them to be, and ultimately to document why they have determined, based on their professional clinical judgment, why a decision has been made to either withhold the warning of an individual or to go forth, violate the confidentiality in the interest of potentially saving someone's life or serious harm, and by extension, the issue of notifying family members, law enforcement, others, whether it be a school or a place of work. Again, very important to know what your statutes are that allow for these types of steps to be taken. What are the risks and benefits of taking those steps and why the ultimate decision was or was not made to go forward with whatever discussion might be had following the patient's individual indication of causing harm to someone to someone else. And that's my presentation for today. I'd like to thank everyone for participating in this webinar. My contact information is in this last slide. I'm always glad to take calls to get emails to offer information to participants. Should you have any questions or follow up questions to the webinar or with clients and so on. And again, I'd like to thank you for participating in this webinar today.

Presenter(s)

CWJ
Carolyn Wolf, JD
Executive Partner
Abrams Fensterman, LLP

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
    Pending
    Alaska
    • 1.0 voluntary
    August 15, 2025 at 11:59PM HST Available
    Arizona
    • 1.0 general
    August 15, 2025 at 11:59PM HST Available
    Arkansas
    • 1.0 general
    August 15, 2025 at 11:59PM HST Approved
    California
    • 1.0 general
    August 15, 2025 at 11:59PM HST Approved
    Colorado
      Pending
      Connecticut
      • 1.0 general
      August 15, 2025 at 11:59PM HST Available
      Delaware
        Pending
        District of Columbia
          Not Offered
          Florida
            Pending
            Georgia
            • 1.0 general
            Unavailable
            Guam
            • 1.0 general
            August 15, 2025 at 11:59PM HST Available
            Hawaii
            • 1.0 general
            August 15, 2025 at 11:59PM HST Approved
            Idaho
              Pending
              Illinois
              • 1.0 general
              August 24, 2025 at 11:59PM HST Approved
              Indiana
                Pending
                Iowa
                  Pending
                  Kansas
                    Pending
                    Kentucky
                      Pending
                      Louisiana
                        Pending
                        Maine
                        • 1.0 general
                        December 31, 2026 at 11:59PM HST Self-apply
                        Maryland
                          Not Offered
                          Massachusetts
                            Not Offered
                            Michigan
                              Not Offered
                              Minnesota
                                Pending
                                Mississippi
                                  Pending
                                  Missouri
                                  • 1.0 general
                                  August 15, 2025 at 11:59PM HST Available
                                  Montana
                                    Pending
                                    Nebraska
                                      Pending
                                      Nevada
                                      • 1.0 general
                                      December 31, 2026 at 11:59PM HST Approved
                                      New Hampshire
                                      • 1.0 general
                                      August 15, 2025 at 11:59PM HST Available
                                      New Jersey
                                      • 1.2 general
                                      August 22, 2024 at 11:59PM HST Approved
                                      New Mexico
                                        Pending
                                        New York
                                        • 1.0 law practice management
                                        August 15, 2025 at 11:59PM HST Available
                                        North Carolina
                                        • 1.0 general
                                        Unavailable
                                        North Dakota
                                        • 1.0 general
                                        August 15, 2025 at 11:59PM HST Available
                                        Ohio
                                        • 1.0 general
                                        Unavailable
                                        Oklahoma
                                          Pending
                                          Oregon
                                            Pending
                                            Pennsylvania
                                              Pending
                                              Puerto Rico
                                                Pending
                                                Rhode Island
                                                  Pending
                                                  South Carolina
                                                    Pending
                                                    South Dakota
                                                      Pending
                                                      Tennessee
                                                      • 1.0 general
                                                      August 21, 2024 at 11:59PM HST Approved
                                                      Texas
                                                      • 1.0 general
                                                      August 31, 2024 at 11:59PM HST Approved
                                                      Utah
                                                        Pending
                                                        Vermont
                                                        • 1.0 general
                                                        August 15, 2025 at 11:59PM HST Approved
                                                        Virginia
                                                          Not Eligible
                                                          Virgin Islands
                                                          • 1.0 general
                                                          August 15, 2025 at 11:59PM HST Available
                                                          Washington
                                                            Pending
                                                            West Virginia
                                                              Not Eligible
                                                              Wisconsin
                                                                Not Eligible
                                                                Wyoming
                                                                  Pending
                                                                  Credits
                                                                    Available until
                                                                    Status
                                                                    Pending
                                                                    Credits
                                                                    • 1.0 voluntary
                                                                    Available until

                                                                    August 15, 2025 at 11:59PM HST

                                                                    Status
                                                                    Available
                                                                    Credits
                                                                    • 1.0 general
                                                                    Available until

                                                                    August 15, 2025 at 11:59PM HST

                                                                    Status
                                                                    Available
                                                                    Credits
                                                                    • 1.0 general
                                                                    Available until

                                                                    August 15, 2025 at 11:59PM HST

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                    • 1.0 general
                                                                    Available until

                                                                    August 15, 2025 at 11:59PM HST

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                      Available until
                                                                      Status
                                                                      Pending
                                                                      Credits
                                                                      • 1.0 general
                                                                      Available until

                                                                      August 15, 2025 at 11:59PM HST

                                                                      Status
                                                                      Available
                                                                      Credits
                                                                        Available until
                                                                        Status
                                                                        Pending
                                                                        Credits
                                                                          Available until
                                                                          Status
                                                                          Not Offered
                                                                          Credits
                                                                            Available until
                                                                            Status
                                                                            Pending
                                                                            Credits
                                                                            • 1.0 general
                                                                            Available until
                                                                            Status
                                                                            Unavailable
                                                                            Credits
                                                                            • 1.0 general
                                                                            Available until

                                                                            August 15, 2025 at 11:59PM HST

                                                                            Status
                                                                            Available
                                                                            Credits
                                                                            • 1.0 general
                                                                            Available until

                                                                            August 15, 2025 at 11:59PM HST

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                              Available until
                                                                              Status
                                                                              Pending
                                                                              Credits
                                                                              • 1.0 general
                                                                              Available until

                                                                              August 24, 2025 at 11:59PM HST

                                                                              Status
                                                                              Approved
                                                                              Credits
                                                                                Available until
                                                                                Status
                                                                                Pending
                                                                                Credits
                                                                                  Available until
                                                                                  Status
                                                                                  Pending
                                                                                  Credits
                                                                                    Available until
                                                                                    Status
                                                                                    Pending
                                                                                    Credits
                                                                                      Available until
                                                                                      Status
                                                                                      Pending
                                                                                      Credits
                                                                                        Available until
                                                                                        Status
                                                                                        Pending
                                                                                        Credits
                                                                                        • 1.0 general
                                                                                        Available until

                                                                                        December 31, 2026 at 11:59PM HST

                                                                                        Status
                                                                                        Self-apply
                                                                                        Credits
                                                                                          Available until
                                                                                          Status
                                                                                          Not Offered
                                                                                          Credits
                                                                                            Available until
                                                                                            Status
                                                                                            Not Offered
                                                                                            Credits
                                                                                              Available until
                                                                                              Status
                                                                                              Not Offered
                                                                                              Credits
                                                                                                Available until
                                                                                                Status
                                                                                                Pending
                                                                                                Credits
                                                                                                  Available until
                                                                                                  Status
                                                                                                  Pending
                                                                                                  Credits
                                                                                                  • 1.0 general
                                                                                                  Available until

                                                                                                  August 15, 2025 at 11:59PM HST

                                                                                                  Status
                                                                                                  Available
                                                                                                  Credits
                                                                                                    Available until
                                                                                                    Status
                                                                                                    Pending
                                                                                                    Credits
                                                                                                      Available until
                                                                                                      Status
                                                                                                      Pending
                                                                                                      Credits
                                                                                                      • 1.0 general
                                                                                                      Available until

                                                                                                      December 31, 2026 at 11:59PM HST

                                                                                                      Status
                                                                                                      Approved
                                                                                                      Credits
                                                                                                      • 1.0 general
                                                                                                      Available until

                                                                                                      August 15, 2025 at 11:59PM HST

                                                                                                      Status
                                                                                                      Available
                                                                                                      Credits
                                                                                                      • 1.2 general
                                                                                                      Available until

                                                                                                      August 22, 2024 at 11:59PM HST

                                                                                                      Status
                                                                                                      Approved
                                                                                                      Credits
                                                                                                        Available until
                                                                                                        Status
                                                                                                        Pending
                                                                                                        Credits
                                                                                                        • 1.0 law practice management
                                                                                                        Available until

                                                                                                        August 15, 2025 at 11:59PM HST

                                                                                                        Status
                                                                                                        Available
                                                                                                        Credits
                                                                                                        • 1.0 general
                                                                                                        Available until
                                                                                                        Status
                                                                                                        Unavailable
                                                                                                        Credits
                                                                                                        • 1.0 general
                                                                                                        Available until

                                                                                                        August 15, 2025 at 11:59PM HST

                                                                                                        Status
                                                                                                        Available
                                                                                                        Credits
                                                                                                        • 1.0 general
                                                                                                        Available until
                                                                                                        Status
                                                                                                        Unavailable
                                                                                                        Credits
                                                                                                          Available until
                                                                                                          Status
                                                                                                          Pending
                                                                                                          Credits
                                                                                                            Available until
                                                                                                            Status
                                                                                                            Pending
                                                                                                            Credits
                                                                                                              Available until
                                                                                                              Status
                                                                                                              Pending
                                                                                                              Credits
                                                                                                                Available until
                                                                                                                Status
                                                                                                                Pending
                                                                                                                Credits
                                                                                                                  Available until
                                                                                                                  Status
                                                                                                                  Pending
                                                                                                                  Credits
                                                                                                                    Available until
                                                                                                                    Status
                                                                                                                    Pending
                                                                                                                    Credits
                                                                                                                      Available until
                                                                                                                      Status
                                                                                                                      Pending
                                                                                                                      Credits
                                                                                                                      • 1.0 general
                                                                                                                      Available until

                                                                                                                      August 21, 2024 at 11:59PM HST

                                                                                                                      Status
                                                                                                                      Approved
                                                                                                                      Credits
                                                                                                                      • 1.0 general
                                                                                                                      Available until

                                                                                                                      August 31, 2024 at 11:59PM HST

                                                                                                                      Status
                                                                                                                      Approved
                                                                                                                      Credits
                                                                                                                        Available until
                                                                                                                        Status
                                                                                                                        Pending
                                                                                                                        Credits
                                                                                                                        • 1.0 general
                                                                                                                        Available until

                                                                                                                        August 15, 2025 at 11:59PM HST

                                                                                                                        Status
                                                                                                                        Approved
                                                                                                                        Credits
                                                                                                                          Available until
                                                                                                                          Status
                                                                                                                          Not Eligible
                                                                                                                          Credits
                                                                                                                          • 1.0 general
                                                                                                                          Available until

                                                                                                                          August 15, 2025 at 11:59PM HST

                                                                                                                          Status
                                                                                                                          Available
                                                                                                                          Credits
                                                                                                                            Available until
                                                                                                                            Status
                                                                                                                            Pending
                                                                                                                            Credits
                                                                                                                              Available until
                                                                                                                              Status
                                                                                                                              Not Eligible
                                                                                                                              Credits
                                                                                                                                Available until
                                                                                                                                Status
                                                                                                                                Not Eligible
                                                                                                                                Credits
                                                                                                                                  Available until
                                                                                                                                  Status
                                                                                                                                  Pending

                                                                                                                                  Become a Quimbee CLE presenter

                                                                                                                                  Quimbee partners with top attorneys nationwide. We offer course stipends, an in-house production team, and an unparalleled presenter experience. Apply to teach and show us what you've got.

                                                                                                                                  Become a Quimbee CLE presenter image