Posts Tagged ‘mental health’

Arizona Guardianship and Mental Health Treatment


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.

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.

Phoenix Seminar on Preventing Abuse, Neglect, Exploitation


Last week in Phoenix, the Maricopa Elder Abuse Prevention Alliance hosted a two-day seminar on prevention of abuse, neglect and exploitation of the elderly. Speakers ranged from nationally-known advocacy leaders to local social service and legal practitioners.

Jeff Calvert, coordinator of the Alliance, listed some of the warning signs of abuse, distinguishing between physical signs (burns, bruises, decubiti, malnutrition, etc.) and behavioral signs. Calvert noted that many behavioral conditions may exist in elders not subjected to abuse, but that they may also indicate something is amiss. His list included:

  • Agitation, anxiety
  • Withdrawal
  • Isolation
  • Confusion
  • Fear
  • Depression
  • Anger
  • Disorientation
  • Resignation
  • Hesitation to talk openly
  • Implausible stories
  • Non-responsiveness

Donna M. Reulbach, director of a Massachusetts program to prevent financial exploitation by involving bank tellers and officers, described her agency’s efforts with banks. She also listed some of the indicators that financial professionals can use to recognize exploitation. The elder customer may be:

  • accompanied by a stranger who urges large cash withdrawals
  • in the company of family members who appear to speak for the elder and make all decisions
  • nervous or afraid of the person accompanying them
  • giving implausible explanations about financial matters
  • unable to remember transactions
  • fearful that they will be evicted (or sued) if money is not given to a caregiver
  • isolated from family or supports (or isolated from family other than the relative accompanying them to the bank)

Lori Stiegel, Associate Staff Director of the American Bar Association’s Commission on Legal Problems of the Elderly, described national trends in prevention and punishment of abuse, neglect and exploitation. She noted that Arizona’s recent inclusion of “emotional abuse” in its criminal statute, coupled with the broad definition of “vulnerable adults” as the group entitled to special protection, made Arizona one of the more progressive states in dealing with problems of abuse, neglect and exploitation.

Phoenix prosecutors Terri Clarke and Pamela Svoboda, together with Phoenix Police Lieutenant Ken Tims, described the goals of and problems encountered by a concerted program to prosecute abusers. Their most notable concern: the difficult in prosecuting cases where the victim may be incapacitated, ill, or deceased, or may now be denying any abuse took place. They noted that abused elder women may commonly suffer from low self-esteem, come from traditionalist backgrounds, demonstrate “learned helplessness” and see their own role as keeping the peace between the abuser and the rest of the family (or society).

Phoenix Doctor Walter J. Nieri noted that many instances of abuse and neglect (as well as some examples of financial exploitation) come from long-term care settings. While nursing homes are closely regulated, and the possibility of undetected abuse is consequently lower, adult care homes are much more numerous and subjected to less state monitoring. He also pointed out that much abuse and neglect can be traced to caregiver stress, and provided a checklist for assessment of the level of stress in individual cases.

Susan Aziz and Chayo Reyes described the Los Angeles Fiduciary Abuse Specialist Team, a multi-agency task force established to combat the “crime of the nineties:” elder financial abuse. The three-year-old program involves Police, Public Guardian, Adult Protective Service and Probate Court representatives, among others. The Team conducts training sessions and focuses on fiduciary abuse.

ECT Treatment Considered by Courts In Two States


Two recent cases involved the availability and use of electroconvulsive therapy (ECT), with different results. Since Arizona appeals courts have not ruled on the use of ECT, the different conclusions of these recent decisions may be instructive in analyzing the use of ECT in Arizona.

ECT is, as most clinicians know, one of the most reviled and misunderstood therapies available to modern psychiatric medicine. Although most lay people believe they have some familiarity with ECT, few know more than the impressions they gained from such depictions as One Flew Over the Cuckoo’s Nest. While ECT is utilized as a treatment of last resort in most cases, it may be tremendously effective for dealing with some illnesses, particularly depression, after conventional drug therapy has failed.

ECT has been legally banned in some localities, and has been the subject of public demonstrations and intense political pressure in many jurisdictions. As administered today, however, the procedure is relatively safe and frequently offers relief where no other therapy is helpful.

In Illinois, Lucille Austwick admitted herself to a psychiatric unit specializing in geriatric patients. She was diagnosed as suffering from chronic depression and dementia. Physicians recommended that she be treated with ECT, insisting that her life was otherwise in danger. Her guardian (the Illinois equivalent of the Public Fiduciary’s office) sought emergency court approval for the treatment.

The trial court hearing Ms. Austwick’s case found that she lacked capacity, that there was no evidence whether she would have approved the ECT if she were able to communicate, and that the treatment was in her best interests. On review, the appellate court agreed that she lacked capacity and that the question should be whether the treatment was in her best interests. Citing the dangerous nature of ECT and specifically finding ambiguity in one physician’s testimony, however, the appellate court found the trial court’s decision “manifestly erroneous” and barred the ECT treatment. Austwick v. Legal Advocacy Service, Ill. App. Ct., 9/7/95).

In Wisconsin, meanwhile, in a case strikingly similar, the court reached the opposite conclusion. Ruth E.J. was severely depressed, and physicians told her guardian that ECT was the only hope for treating her depression. Wisconsin law dictates that ECT may be administered only with the patient’s “express and informed consent,” notwithstanding that Ruth E.J. was incompetent to give such consent.

Ms. E.J.’s guardian, like Ms. Austwick’s, brought an action for court approval of the ECT. The Wisconsin court, however, reacted quite differently; finding that the statute as applied to Ms. E.J. was unconstitutional, the court ruled that ECT may not be withheld from a patient simply because they lack capacity to give specific consent. In re Guardianship of Ruth E.J. v. Ruth E.J., Wis. Ct. App., 9/6/95).

Oregon’s “Death With Dignity” Act Stricken By Federal


Last November, Oregon voters approved a ballot initiative called the “Oregon Death With Dignity Act.” This first-of-its-kind legislation created a right to physician-assisted suicide in narrowly proscribed circumstances. Predictably, opponents filed suit claiming the Act violates the U.S. Constitution.

Earlier this month a U.S. District Court Judge in Oregon sided with opponents of the Death With Dignity Act. In a nine-page opinion, Judge Hogan ruled that the Act violates the Fourteenth Amendment by denying equal protection of the laws to terminally ill patients who may also be depressed.

Oregon’s law provided a mechanism for securing physician assistance with suicide only when the patient:

  • is terminally ill,
  • initiates the discussion about suicide,
  • waits at least fifteen days, and
  • is examined by another physician on referral by the attending physician.

Judge Hogan’s opinion striking down the Oregon law makes the point that a clinically depressed patient who attempts suicide normally will come under the purview of the state’s civil commitment laws. Under those laws (essentially similar to Arizona’s), the patient would be evaluated by two independent and qualified physicians. If the patient’s suicidal actions appeared to be the result of a mental disorder (including but not limited to depression), the state would intervene and protect the patient from harm, even though the patient may not choose to be so protected.

Under the Death With Dignity Act, however, the determination whether the patient’s wish to die is the product of mental disorder is made by the attending physician and another chosen by the attending physician. This, says Judge Hogan, means that the terminally ill and suicidal patient is not adequately protected from the possibility that he or she might be mentally ill. This is true, according to the Court, because the examination is undertaken by:

  1. One physician and his or her choice of consulting doctor,
  2. Neither of whom is required to be a psychiatrist or trained in dealing with mental illness.

Thus, according to the Federal Court opinion, Oregon’s Death With Dignity Act fails to provide adequate protection for those who are both terminally ill and mentally ill. Consequently, the Act must fail.

The result of this decision is a legal anomaly. In Oregon, where voters adopted a Death With Dignity Act, physician-assisted suicide is not available because of Judge Hogan’s ruling. In Washington state, however, where voters rejected a nearly-identical Death With Dignity Act, another Federal Court ruling has found that physician-assisted suicide must be made available to the same patients.

Stay tuned for further legal developments.

Recent Court Cases

MAY 15, 1995 VOLUME 2, NUMBER 45

Court decisions from other states may give only indirect guidance on Arizona legal problems. Two recent cases suggest possible concerns for advocates for the elderly.

Nursing Home May Not Exclude Aggressive Patient

Fair Acres Geriatric Center, a county-operated intermediate care nursing home in Pennsylvania, decided it could not admit Margaret Wagner. Ms. Wagner was a demented patient inclined to screaming, agitation and aggressive behavior. Fair Acres decided that Ms. Wagner’s admission would have violated its policy against admitting psychiatric patients.

Ms. Wagner’s attorney argued that the federal Rehabilitation Act of 1973 required Fair Acres to admit her. Since Ms. Wagner was otherwise qualified for admission, Fair Acres’ denial was based on her disability. And since Fair Acres received federal funds, the Rehabilitation Act prohibited the facility from discriminating against Ms. Wagner.

The Federal Court of Appeals upheld the jury verdict requiring Ms. Wagner’s admission. The court specifically found that Fair Acres had failed to show that Ms. Wagner would impose an undue burden on the facility, despite evidence that she was “a challenging and demanding patient.”Wagner v. Fair Acres Geriatric Center, 3rd Circuit Ct. Of Appeals, March 15, 1995.

OBRA Recovery Statute Not Retroactive

Arkansas (like Arizona) adopted a new estate recovery program after the federal OBRA ’93 requirement that states do so. OBRA was effective August 13, 1993; Arkansas’ statute was effective August 15, 1993.

When Helen H. Wood died in October, 1993, the Arkansas Medicaid agency made a claim against her estate for the cost of her care from December, 1991, until her death. Her estate argued that the estate recovery program could not be applied retroactively, and that only the cost of the last two months of her care could be recovered.

Arkansas’ Supreme Court agreed with the estate, finding that the statute created a new legal right and could not be extended back in time. (Arizona has not made any effort to make its estate recovery program retroactive, but this case suggests that any such attempt would fail.) Estate of Wood v. Arkansas Dep’t of Human Services, Arkansas Supreme Court, March 6, 1995.

White House Conference on Aging (Cont’d)

APRIL 10, 1995 VOLUME 2, NUMBER 40

More proposals considered by Arizona delegates to the White House Conference on Aging (by topic area):

Health Care and Mental Health

  • Permit reimbursement for direct care provided by nurse practitioners and physician’s assistants, for home care, preventive care and wellness programs.
  • Reduce duplication and coordinate services, particularly for those who access special services such as Veteran’s programs, Indian Health Services and Medicaid.
  • Control prescription medication costs.
  • Avoid rationing of health care by caps on service reimbursement and cost-benefit analysis of the true value of high-cost medical procedures.
  • Use excess hospital capacity for alternative services, such as extended care and assisted living.
  • Share medical resources, particularly high-tech equipment.
  • Consider means-testing Medicare (though a strong minority voice opposed any discussion of such a step).
  • Expand health programs to include mental health services.
  • Promote greater patient involvement in medical decisions.
  • Deal more creatively with substance abuse and suicide among the elderly.
  • Encourage medical professionals to work in rural and under served populations.
  • Institute a single-payor national health program (though this one did not make it into the final report).

Long Term Care

  • Shift emphasis from long term care in medical institutions to home care.
  • Provide tax incentives for family caretakers.
  • Encourage innovation in state and local programs by granting federal program waivers.
  • Promote prevention practices, among both elderly and young.
  • Encourage seniors to volunteer in their communities, to help them stay vital and involved.
  • Develop a wellness check program for homebound seniors.
  • Provide loans and incentives for home repair and adaptation for the homebound elderly.
  • Increase recreational programs for the elderly.
  • Expand case management programs.
  • Provide respite care for family care givers.
  • Promote congregate housing alternatives to reduce care costs.
  • Promote family and community responsibility for the elderly.

These are just a few of the myriad of suggestions considered by Arizona delegates. Next issue, we will discuss “special populations” and “elder rights.”

White House Conference on Aging


The White House Conference on Aging will convene in Washington, D.C. on May 2, 1995. For four days, delegates from around the country will discuss issues of importance to an aging American population.

Among the delegates will be four Pima County residents: Elder Law Issues Publisher Robert Fleming, PCOA Executive Director Marian Lupu, Univ. of Arizona Professor Theodore Koff, and former Social Security Commissioner Charles Schottland.

In previous Elder Law Issues, we have described some of the issues Arizona delegates wrestled with during the Arizona conference in January. Beginning with this issue, we will give you some insight into the issues that Arizona delegates thought important for the national agenda.

Issues on the Agenda

The Arizona conference dealt with five areas of concern for aging Arizonans. Those topic areas (more thoroughly described in previous Elder Law Issues) included:

  • Financial and Income Security
  • Health Care and Mental Health
  • Elder Rights
  • Long Term Care
  • Special and Minority Aged Populations

Not surprisingly, many of the ideas and concerns developed by the Arizona conference had been discussed and debated in previous forums. A sampling of the Social Security proposals and recommendations from the Arizona conference:
Isolate Social Security from other budget items, to preserve the programs viability and deal with anticipated future demands.

Reduce the federal deficit or, in other words, improve the quality of Social Security investments by avoiding use of Social Security to subsidize debt costs.

Streamline the Social Security Administration itself as a way to cut costs.

Consider means testing Social Security, but only if absolutely necessary (two of five separate discussion groups at the Arizona conference adamantly opposed any consideration of means testing).

Raise the wage cap on taxable salaries to generate more revenues.

Educate Americans to the reality that Social Security is intended to be a supplement to other retirement programs.

Encourage healthy seniors to remain employed longer by removing the cap on earnings for recipients (one discussion group adamantly opposed this solution, believing that the program would be seriously hurt financially).

Next Issue

Beginning next issue, Elder Law Issues will capsulize conference recommendations in other areas.

More AZ White House Conference on Aging


As mentioned in last week’s Elder Law Issues, the Arizona White House Conference on Aging held in Phoenix a week ago dealt with the issues facing the full White House Conference on Aging when it meets in May. Arizona’s delegation dealt with several issues expected to dominate the national aging agenda.

Health Care and Mental Health

In 1993, expenditures for health care totaled about $903 billion in the United States. Estimates indicate that the total cost of health care may exceed $1.7 trillion by the year 2000. While the overall cost of living increases at less than 5% per year, health care costs increase more than 10% each year.

Elderly citizens are more closely affected by medical problems than the general population. Those over 65 have an average of eight medical visits per year, as opposed to the five visits made by the rest of the population. The elderly are hospitalized more than three times as often as younger patients, stay half again as long in the hospital, and use twice as many prescription drugs. The disparity is widening; elderly patients are expected to increase their contacts with physicians by 22% (from 259 million contacts to 296 million) by the turn of the century.

The federal Medicare program provides medical care to most Americans over age 65 (about 5% of the elderly are not covered by Medicare). In 1995, Medicare recipients pay $46.10 per month(an increase of over 10%) in insurance premiums to secure coverage for most medical care. Costs not covered by Medicare include eye and dental care, most prescription medications, most nursing home care and most mental health care.

In addition to Medicare Part B premiums, many elderly patients pay substantial deductibles and co-payments for their medical coverage. Others (in increasing numbers) rely on managed care (HMO) programs to reduce or eliminate co-payments.

Mental health services are particularly limited by Medicare. While Arizona has one of the highest suicide rates for over-65 patients in the nation, depression and alcoholism (the leading precursors to suicide and other behavioral health problems) are often undetected and untreated. Reimbursement rates and coverages are not conducive to appropriate and prompt treatment.

Elderly patients in rural areas face particular problems with health care. In addition to the other health issues, rural Arizonans have particular difficulties with transportation. In addition, physicians in rural areas are much more likely to refuse to accept Medicare assignment for their services.

[Next issue: “Special” Elderly Populations]

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