SEPTEMBER 15, 2014 VOLUME 21 NUMBER 33
A guardian (of the person) is often said to have all the powers over her ward that a parent would have regarding a minor child. In other words, if the court appoints you as guardian over your mother or father, you have (at least in a legal sense) switched roles. But there are some things a guardian can not do — chief among them, at least in Arizona, is a limitation on a guardian’s ability to secure inpatient mental health treatment.
A word of warning is appropriate here: all of our newsletters focus on Arizona law — though the principles are often similar in other states. This installment will not be one of those. It relies completely on an Arizona statute and practice that are not widespread — so far as we know, no other state has quite the same approach to getting inpatient mental health care for someone under guardianship.
Generally speaking, an Arizona guardian has the authority to approve or arrange for mental health treatment for her ward. The guardian can authorize the administration of psychotropic medications. Similarly, the guardian can approve psychiatric treatment in an outpatient setting, or the delivery of psychiatric services to a ward who is in the hospital, a nursing home or a secure residential facility.
But an Arizona guardian does not have the power to place her ward in a locked psychiatric facility without further court involvement. That is expressed in Arizona law by limiting the guardian’s authority to admit her ward to a “level one behavioral health treatment facility.” That describes a locked-ward inpatient psychiatric program, so a guardian is usually unable to admit her ward to involuntary mental health treatment in a locked psychiatric ward.
How does a mentally ill patient get inpatient mental health treatment when it is required? There are two ways: either the mental health system must initiate an involuntary treatment petition (what is sometimes called a “civil commitment” proceeding), or the guardian must have gotten special authority to admit her ward to inpatient treatment in advance.
Why does it take an additional proceeding to get needed mental health care for an ill ward? Because the mental health system if very protective of the civil rights of individual patients, and involuntary placement in a locked ward looks very much like incarceration to the unhappy patient.
Would it make sense, then, for every Arizona guardian to get the mental health authority in advance, just in case it turns out to be needed? No — that is not even possible unless the ward is actively mentally ill at the time of the guardianship petition.
The Arizona statute on mental health guardianships (Arizona Revised Statutes section 14-5312.01) spells out what is required. In addition to the evidence required to get a guardianship at all, the guardian must file a report from a psychiatrist or psychologist, show that the ward is currently mentally ill, and establish that there is likely to be an actual need for institutionalization within the upcoming year. The authority to make the placement decision expires in one year, whether or not it is used; the guardian must take steps to extend the authority by collecting additional affidavits from a psychiatrist or psychologist, setting a court review time and giving notice to her ward. The process is somewhat automatic once those documents are filed, but there is usually no reminder or assistance from the court or the mental health treatment system, and so a guardian must be diligent to get the authority extended.
Every Arizona guardianship requires that the ward have counsel; if the court appoints an attorney to represent the ward, that appointment may end once the guardianship is established (at least in some Arizona counties — practices differ). But if the guardian has mental health powers, the attorney’s involvement continues indefinitely. That means that the guardian must continue to give notice to (and involve) the attorney for at least as long as the mental health authority continues.
Does that mean that the mental health authority is usually worthless? Not at all. It is not often even available, but in cases where it is a legal possibility, it can shorten the process of getting mental health treatment for a loved one who is decompensating. It also can provide significant comfort to family members who are anxious to have all the tools that might be helpful — even if it does not often get used.
Arizona guardians should know about the mental health treatment limitations and special authority available in some cases. Not very many guardian will need to pursue getting the mental health power added to their guardianships, but for those whose wards are actively mentally ill (and in and out of treatment facilities), the authority can be helpful and comforting.