In Special Needs News

Woman suffering from mental illness sits alone in darkened room with her head in her hands.Mental illness affects one in five adults in the United States, the National Institute of Mental Health reports. The severity of mental illness varies. Serious mental illnesses are mental, behavioral, or emotional disorders that cause significant life impairment and limit major life activities. In 2021, 14.1 million American adults had a serious mental illness.

Severe mental illnesses typically affect thinking, understanding, and perception. For example, a person with a psychotic disorder may hallucinate or experience delusions. A person with bipolar disorder may be vulnerable to scammers during a manic episode. When mental illness becomes severe, it can impair decision-making.

Watching a loved one experience a mental illness can be distressing. Family members often worry about access to mental health services. They may also worry about whether their loved one is receiving treatment. Other concerns include access to basic necessities like food, clothing, and housing.

People with severe mental illness are also at risk of financial exploitation, the National Library of Medicine reports. Exploitation can be an additional concern for family members.

Guardianship can provide protection for people with severe mental illness. The guardian makes decisions for the individual.

When Is Guardianship of an Adult with Mental Illness Appropriate?

Many people with mental health challenges can live independent lives. However, those with severe impairments may need additional help.

Serious mental illnesses can cause incapacity. When a person with behavioral health issues cannot make personal or financial decisions or becomes unable to care for themselves, the court may step in to appoint a guardian.

Often, a loved one will serve as the guardian. However, some states have public guardianship systems or social service agencies. These agencies offer guardianship services.

Guardianship requires a finding of loss of capacity. States can differ in how they define this term. Generally, a person with a mental illness is incapacitated when they cannot understand information or communicate, per World Guardianship Congress.

Some states also look to whether the person has trouble with activities with daily living (ADLs). ADLs include such basic daily tasks as bathing, dressing, using the toilet, and eating.

In a guardianship case, the court determines the type of guardianship that is appropriate for the situation. In a total guardianship, the guardian can make decisions about where the person lives and receives care. The guardian can also make financial decisions. This is also known as plenary guardianship.

Sometimes, the court will decide that a person needs help in certain areas only. For instance, the court may permit the guardian to manage money and financial affairs but not make other decisions. A financial guardian is called a guardian of the estate or conservator, depending on the state. A guardian of the person oversees the physical well-being of the individual.

In other cases, the court determines that a limited guardianship is appropriate. The guardian has limited decision-making authority. For example, a limited guardianship may allow the guardian to make treatment decisions only.

Additional Considerations

Although guardianship may protect a person with severe mental illness, asking the court to appoint a guardian can come with challenges.

Proving that someone is unable to manage their affairs can be difficult. For example, a person with bipolar disorder may have severe impairment during a manic episode. However, their behavior can change. Behavioral changes can make it more difficult for the court to determine whether the individual needs the help of a guardian.

Serving as a guardian of a loved one with a severe mental illness can also make family relationships more complex. Conflicts can arise when a loved one takes on dual roles as a family member and decision-maker. For this reason, some families prefer to use third-party guardians.

The goal of guardianship should be to support the autonomy of the individual. If the court appoints a guardian, the guardian should consider the ward’s wishes when making decisions.

People with mental illness and their families may also want to explore alternatives to guardianship. A less restrictive alternative, such as an advance directive, can support the autonomy of the person experiencing mental illness.

Advance Directives as an Alternative to Guardianship

One important alternative to guardianship is a psychiatric advance directive (PAD). A PAD is a type of advance directive for people experiencing mental illness.

A psychiatric advance directive can ensure that an individual’s voice is heard even after they can no longer make or communicate decisions about their care. This type of advance directive protects autonomy and allows the individual to participate in their treatment. Someone with a mental illness can make a PAD when they are of sound mind. This document allows them to prepare for periods in which their illness becomes more severe.

It typically includes two parts: advance instruction and a health care power of attorney.

Through advance instruction, the individual can state treatment preferences, such as preferred medications, treatment modalities, and facilities. The individual can also give consent for admission to a treatment facility. The instructions may also include how to handle practical matters like child care and employment in the event of an adverse mental health episode.

With a medical power of attorney, a person with a mental illness can appoint a trusted person to serve as an agent. The agent has the authority to make healthcare decisions in place of the individual. For example, the agent could consent to treatment or transfer to a psychiatric facility.

Consider Legal Advice 

People with behavioral health problems and their loved ones can benefit from the assistance of a special needs planner. Your special needs planning attorney can provide representation in guardianship cases. They also can help create a comprehensive plan for future care, protecting the interests and autonomy of the individual with mental illness. This can involve creating a psychiatric advance directive or other alternatives.

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