JANUARY 7, 2013 VOLUME 20 NUMBER 1
A recent blog entry from the Special Needs Alliance (two of our lawyers are members) addressed the common problems encountered when family members seek guardianship over someone with a mental illness. The very same day we received a call from a prospective client, asking if he could secure a guardianship over his mentally ill son in order to assure that his son received psychiatric care. In fact, the question comes up regularly, and the unfortunate truth is that guardianship is seldom very helpful. It seems like it should be a good solution; why then is it not?
For several reasons. Let’s start with the limitations on guardians. In Arizona, at least (we suspect but do not know that similar limits will encumber guardians in other states), a guardian may have the legal authority to place a person in a treatment facility, but not the power to chain them down. We mean that figuratively, of course. Mental health patients can leave a residential setting, can resist cooperation and can refuse to participate in treatment. A guardian may have the theoretical authority to return the patient to the care setting, but the cycle of refusal and departure would keep the treatment from being consistent.
Coupled with that is an important reality of modern psychiatric treatment: it is not usually thought of (by the professionals) as keeping the patient safe but as actively improving their mental state. In fact, most psychiatrists we have talked with insist that placement in a treatment setting for more than a few days — a week or two at most — most likely makes treatment less effective rather than more effective. The idea of “asylum” — a safe place for the incurably mentally ill to be housed indefinitely — simply has no role in modern treatment. One might reasonably argue that there should be such a place, but there is not. Put more prosaically, being someone’s guardian will not help create a place for them to stay.
A related problem: our society seriously underfunds mental health care. That means that there may not be an available program — even as an outpatient or outreach program — to treat your family member. Being his or her guardian will not make additional resources available.
Though guardianship may sometimes provide a small marginal benefit, there is another problem: the mentally ill subject of a guardianship proceeding may be very intelligent, very articulate and able to appear quite logical on at least some occasions. That means that it may be uncommonly difficult to “prove” the guardianship is necessary. Furthermore, the mentally ill subject of a guardianship is more likely to be upset, and to become uncooperative, than a person with, say, dementia.
It often seems obvious to family members: our relative is mentally ill, treatment would afford them significant benefit, and they do not understand the value of treatment precisely because of their mental illness. For better or worse (we think “better,” but we appreciate that it gets in the way of the best interests of some patients), our legal system starts from a different place. Guardianship is the state taking away the individual’s powers and transferring them to the guardian; we should not be able to take that step unless we can show that the person is not just mentally ill, but also incapable of providing their own necessities of life.
Put another way: though treatment might make a mentally ill patient happier, more productive, less disruptive and healthier in every way, our legal system will not impose that treatment unless the patient is completely unable to provide for themselves. Or, in a separate but related process, dangerous (or totally disabled).
That’s another reason guardianship so often does not work for the mentally ill. Years ago we (as a society and as a legal system) resolved to establish a “gatekeeper” approach to involuntary mental health treatment. That means that we have delegated the decision-making authority to (in Arizona’s case) medical directors of mental health treatment facilities, and we have given them sharp limits on when they can impose treatment. Generally speaking, the patient must be dangerous (either to themselves or toward others) or seriously disabled by their mental illness. And commitment to involuntary treatment does not usually involve long inpatient stays — typically, involuntary commitments include an outpatient treatment regimen of up to about a year. Guardianship may sometimes actually get in the way of that treatment cycle.
Then there are some of the practical problems arising from the population of patients with mental illness. Often those patients self-medicate — with alcohol or illegal drugs. The commitment process requires that their problem must be primarily mental illness, not drug or alcohol use. The guardianship process requires that the person be unable to make responsible decisions at the time of the hearing, and it is often easy for them to forego drugs or alcohol for the week or two before an examination, and to appear to be much better on the actual hearing date.
Speaking of drugs and alcohol, there is the related problem of treatment for the chronic abuser (who may also have mental illness — or even, after years of abuse, a dementing condition). There is effectively no involuntary treatment option for the chronic alcoholic or drug addict. Addiction programs are premised on the patient’s recognition of a problem, and so guardianship is not an effective way of getting into the treatment system.
For all of those reasons, we often discourage family members from pursuing guardianship over their mentally ill loved ones. That is not to say that it never helps; it sometimes does. But it is not the easy solution that hopeful family members are looking for.