Guardians Given Power To Seek Mental Health Care For Wards

MAY 10, 1999 VOLUME 6, NUMBER 45

Like many states, Arizona has long recognized two different kinds of guardianship. Most incapacitated wards have a guardian appointed pursuant to the Arizona version of the Uniform Probate Code, which is contained in Title 14 of the Arizona statutes. One of the principal limitations of the usual guardianship proceeding, however, has been that the guardian may not place a mentally ill ward in a psychiatric treatment facility involuntarily.

For the mentally ill, Arizona maintains a separate guardianship proceeding. Familiarly known as “Title 36” guardianship (after the section of the code where the provisions have been located), this kind of proceeding can give the guardian power to place the ward in a mental hospital. Such mental health guardianships are more expensive and onerous than regular guardianship proceedings, and must be renewed every year.

Last month, the Arizona legislature changed all of that. A new law signed by the governor on April 27 will eliminate the Title 36 (mental health) guardianship option, and give more options to general guardians.

Under the new law, a guardian can be given the power to admit a mentally ill ward to a psychiatric facility without extensive proceedings. If the guardian can file a psychiatrist’s or psychologist’s affidavit indicating the ward needs immediate hospitalization, the court can give authority without a separate commitment proceeding.

Once a ward has been placed in a hospital under the new law, the guardian must give notice to both the ward and the ward’s attorney; either can request a hearing. If the ward requests an immediate hearing, the issue must be before the court within five days of the hospitalization.

Perhaps more importantly, the new law clears up a long-standing concern among guardians. It has previously been unclear whether a guardian has the power to consent to outpatient mental health care and administration of antipsychotic medications. The law now expressly provides that a guardian “may consent to psychiatric and psychological care and treatment, including the administration of psychotropic medications,” so long as the care takes place outside a psychiatric hospital.

An innovative new idea contained in the law may actually give mental health patients more control over their treatment, even when hospitalization is required. The new provision expands the usefulness of health care powers of attorney, which have been officially recognized in Arizona for years. Now health care powers of attorney can expressly permit the agent to authorize mental health treatment, including psychiatric hospitalization. A mental health care power of attorney can even be made irrevocable, if the signer is concerned that he or she might try to revoke the power just when it is most needed. A handful of other states have experimented with mental health care powers of attorney, with mostly good results.

Although not related to psychiatric care, the new law also establishes a mechanism to permit a ward to continue to drive. Under current law, the right to drive is automatically suspended by appointment of a guardian; now the judge establishing the guardianship may direct that the ward’s license not be suspended.

The legislative changes are contained in Senate Bill 1146, which will be effective ninety days after the legislature adjourns. Those interested in a copy can contact FLEMING & CURTI for more information.

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