Mental illnesses affect one in five adults in the United States according to the National Institute of Mental Health. The severity of mental illnesses vary. Serious mental illnesses are mental, behavioral, and/or emotional disorders that cause significant impairment and limit an individual’s major life activities. In 2021, 14.1 million American adults were living with 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 a mental illness becomes severe, it can impair the individual’s decision-making.
Watching a loved one experience a mental illness can be distressing. Family members often worry about whether their loved one has access to mental health services, whether their loved one is receiving treatment, and whether their loved one has or will continue to have 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. A guardian makes decisions for the individual who is unable to act in their own best interests
Many people with mental health challenges 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. In New York, for example, a person may be found by a court to be incapacitated when they are unable to meet their basic needs, unable to make reasonable decisions, and are at risk of harm because they do not realize they need help.
In a guardianship case, the court determines the scope of the guardian’s authority based on what 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.
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 advance directives, can support the autonomy of the person experiencing mental illness.
One important alternative to guardianship are advance directives.
Advance directives can ensure that an individual’s voice is heard even after they can no longer make or communicate decisions. This type of advance directive protects autonomy. Someone with a mental illness can execute advance directives when they are of sound mind, allowing them to prepare for periods in which their illness becomes more severe.
A health care proxy can allow an individual to appoint a person to make medical decisions on their behalf if they become unable to.
A power of attorney can allow an individual to appoint a person to make decisions for them in non-health matters and to take care of them financially.
People with behavioral health problems and their loved ones can benefit from the assistance of a special needs planner. A 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 through the use of advance directives.
If you would like to speak with an experienced elder law attorney regarding your situation or have questions about something you have read, please do not hesitate to contact our office at 1 (800) 680-1717. We look forward to the opportunity to work with you.
