Tag Archives: mental health

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Removing a Guardian with Mental Health Powers

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Removing a Guardian with Mental Health PowersIt can be emotionally draining for you when your loved one’s personal rights have been limited. When age, mental or physical illness or other situations affect the ability of the loved one to maintain independence, important decisions (such as choice in doctors, healthcare treatments, where to live, whether he or she can drive a car and what family and friends can visit) need to be made by someone else.

That’s where guardianship can help. To review, a guardian is a person granted the legal authority and responsibility to help another person make decisions that affect his or her wellbeing. A guardian with mental health powers has authority to make decisions specific to mental health care, including whether the ward needs inpatient hospitalization.

Unfortunately, a guardian may not always do a good job fulfilling the delicate and sometimes confusing responsibilities of the position, and may be putting the protected person at risk.

If you find yourself in a situation where a guardian is not acting in the best interest of your loved one, you have the right to petition the court to remove the current guardian and to appoint a replacement.

If this happens, you will need to supply the court with a professional evaluation of the protected person. The quickest way to work with HIPAA and other confidentiality laws (HIPAA refers to The Health Insurance Portability and Accountability Act of 1996) is to seek assistance from an experienced probate attorney to file a motion with the court that will require the ward to receive an additional psychiatric examination.

This ruling process typically takes about two or three months. If the situation is an emergency, your attorney can help you file for emergency status to receive a ruling sooner.

The court will make a ruling for removing a guardian and appointing a successor based on the best interest of the ward. This means that the court doesn’t necessarily need to find that the current guardian has acted inappropriately. The court is interested in what is best for the protected person and will support replacing a current guardian with a successor who is better qualified.

The most common mistake that guardians make is not disclosing information to the family and lawyers. If you’re acting as a guardian with mental health powers, make sure you keep lines of communication open between your ward’s family and attorney. Maintain copies of all letters and reports that are sent to involved parties. Preserve meticulous records of expenses you’ve made for which you’ve used the ward’s resources.

Whether you’re a guardian in need of help navigating the responsibilities of the position, or a family member concerned about the care your loved one is receiving, don’t be afraid to talk to an attorney. Attorneys’ experience in navigating the legal system can help you make sure your loved one receives proper care and give you peace of mind.


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Guardianship with Mental Health Powers

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Guardianship with Mental Health PowersDisability, physical or mental illness or alcohol or drug abuse can limit a person’s ability to live an independent life. In such cases, a guardian may be appointed to take care of everyday tasks such as housing, education, medical care, food and clothing. However, this post discusses a guardianship with mental health powers, meaning that the guardian has additional powers to deal with psychological or psychiatric issues.

To review, a guardian has the legal authority and responsibility to make all these decisions on behalf of another (who is legally referred to as a ward, incapacitated person or protected person) to protect his or her well-being. A guardian who has powers over mental health has additional authority to admit the protected person for inpatient mental-health treatment.

Admitting a ward for inpatient therapy is a serious responsibility. Inpatient treatment means the ward will not be free to leave. This limits or removes a U.S. citizen’s constitutional right to liberty and due process. Taking such an action is, understandably, a measure of last resort.

A guardian with “mental health powers” has other responsibilities and obligations of that include:

Making decisions concerning the ward’s mental-health needs. This includes the decision to place a ward in a mental-health treatment facility.

Seeking the advice and assistance of qualified mental health professionals.

Exploring alternatives to inpatient hospitalization. Inpatient hospitalization should be the last resort.

Giving notice of placement. That is, notifying the ward’s attorney of placement of the ward in an inpatient treatment facility within 48 hours.

Providing assessment of the appropriateness of placement. The guardian is responsible to make sure assessment is done every 30 days. A copy of the assessment must be mailed to the ward’s attorney.

Giving the facility the ward’s attorney’s contact information. If the ward is admitted to an inpatient behavioral health treatment facility, the guardian must make sure the facility has the address and telephone number of the ward’s attorney.

Transferring a patient to least-restrictive care once and if inpatient care is no longer needed. The guardian must find alternative care within 10 days after notification from the inpatient facility that the ward is no longer in need of such care. If there are issues in finding alternative placement, the guardian or medical director or both may request the court hold a hearing for assistance.

The longest time that a guardian can admit a ward to inpatient psychiatric facility for mental health care is one year. If inpatient care is required after the year is up, the court will need to grant authorization for an additional year.

If you have questions about guardianship with mental health powers, contact our office. This is a complicated area of law and can be confusing, even for lawyers. We have the experience to help you safely navigate this often-challenging part of life.

In the next post we will look at how to remove a guardian with mental health powers.

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