The Voice® Newsletter

February 2011 - Vol. 5, Issue 3

The Voice is the e-mail newsletter of the Special Needs Alliance. This installment was written by Special Needs Alliance member Shawn Majette of Richmond, Virginia. Mr. Majette was recently named to Virginia Lawyers Media 2010 class of Leaders in the Law. This program, now in its fifth year, aims to honor the lawyers who are setting the standard for other lawyers. Mr. Majette has been recognized by Best Lawyers in America in Elder Law since 2007. He is also an active member of NAELA and was recently the focus of the organization’s magazine cover story, The Magician of Elder Law. Mr. Majette’s many articles can be found on the t-mlaw.com website. Involuntary Civil Commitment is one of the most recent posted online.

The Other Special Need: Planning for Those with Severe Mental Illness

Readers of The Voice know that our pages feature an eclectic mix of articles helpful to families coping with the limitless issues that disability and infirmity push into our lives. Yet I have seen nothing in our collection addressing a topic that consumes half of my professional life and casts its long shadow on the remainder of my law practice devoted to guardianship, conservatorship and trusts. That topic is getting treatment for serious mental illness when its victim refuses care.

Mental illness surrounds us. It touches every reader in one way or another. Some of our readers may suffer from mental illness themselves. Some are caring for (and often just trying to co-exist with) an afflicted loved one. Some are professionals guiding others though the labyrinth of the mental health treatment system. Some are all of the above. As a civil commitment judge for almost twenty-five years, I have seen the countless tragedies mental illness inflicts on innocent patients, families, and communities.

My office is an hour (and 300 years) away from Colonial Williamsburg, home to the first public mental hospital in the New World. When Patrick Henry demanded Liberty or Death at St. John’s Church, he was desperately trying to care for a beloved wife locked away in his country home, the only alternative to institutionalization at Williamsburg for someone suffering from severe bipolar disorder.

Today, we have statistics by which to measure the problem of mental illness in the United States. The numbers are huge. 25% of adult Americans (about 57 million) suffer from a diagnosable mental disorder in any given year. Of these, approximately 4.5 % suffer from a “serious mental illness” — a mental, behavioral, or emotional disorder (excluding developmental disabilities and disorders caused entirely by substance use) that “currently or within the past year has been diagnosable as being of sufficient duration to meet standardized diagnostic criteria to result in a serious functional impairment which substantially interferes with or limits one or more major life activities.” (The definition comes from the chief reference for all such conditions, the Diagnostic and Statistical Manual of Mental Disorders, currently in its fourth edition, and known as the DSM-IV).

In my practice, the serious mental illnesses I see most often are schizophrenia, mood disorders (bipolar, manic depressive, schizoaffective disorders and depression), and dementia. The hallmark of these illnesses and the reason for this article is that in many cases, the pharmaceutical treatments which exist are not effectively administered because the illness itself deludes the victim into rejecting help: “there is no illness,” “Jesus has healed me,” “the medicine is poison and you are all murderers!” The illness often manifests in inescapable whispering voices, horrific visions, putrid smells, tactile hallucinations, or entirely different personalities all wrestling for control of the person, all seemingly focused on avoiding treatment at all costs. Add to this the very real side effects of treatment — where the cure, if not worse than the disease, may seem so, even where government benefits eliminate the additional barrier of skyrocketing costs.

Without minimizing the inadequacy of mental health treatment and government supports for those suffering from mental illness, this article reviews the practical tools that do exist to help families plan for future illness and future treatment.

  • The voluntary tools for management of a mentally ill person’s estate are well known and documented.

Serious mental illness should inform the details of estate planning. When the mentally ill but not incapacitated client is willing to plan for his estate, and sometimes, for the estate of a mentally ill child, most special needs lawyers will suggest a durable financial power of attorney, or, if the mentally ill individual owns assets, at least a quasi-revocable living trust.

If possible under local law, the power of attorney should limit the power of revocation, and should expressly authorize the agent to transfer any part (or all) of the client’s estate to the trustee of the living trust.

When the client has mental illness, I call the revocable living trust an “in-out” trust. It is revocable (or amendable) as long as the trustee believes the client is capable of the action contemplated; if the trustee believes the client lacks capacity, the trustee is permitted to refuse to abide by the mentally ill client’s wishes for a cooling off period (usually no more than 90 days) during which the trust is a discretionary trust permitting the trustee to ignore unreasonable demands but continue to provide support and reasonable luxuries. At the end of the cooling off period, we hope the client has received treatment, but at least during that time has been prevented from buying multiple motor vehicles or, as was once the case of a much beloved client, hiring another circus to perform at his home on a birthday. If an impasse continues, the trustee may petition for guardianship or otherwise seek guidance from the Court. (Ultimately, only a guardianship / conservatorship may protect the client from entering into contracts and thus, from the claims of creditors.)

  • The voluntary tools for management of a mentally ill person’s mental health care are not well established.

If you live in America, you live in a state with an advance directive law. These statutes permit you to name an agent to make health care decisions for you, and to specify what actions you’d like – or not like – in your doctor-patient relationship. The problem with an ordinary advance directive in a mental health context is the liberty and flexibility we so prize in them.

Advance directives freely given may be freely rescinded, or may be ineffective unless it is undisputed that the signer is no longer able to make, or communicate, health care decisions. A seriously mentally ill child in his right mind when he gave his mother the directive may, in the course of the disease or a lapse in treatment, again succumb to the poisoned whispers that she is trying to kill him. “What a fool you were to have given her power over you in the first place!” say the voices.

“But he’s too sick to know what he is doing!” the desperate matron wails to the physician in the emergency room. “You can’t let him leave! Look, I have power of attorney over him!”

The doctor (or the hospital’s lawyer) will explain, to the point of distraction, that her child is not incapable until a judge says he is, and until then, the doctor will follow the adult child’s instructions, not hers. Absent an emergency involuntary commitment proceeding (discussed below), such an admittedly mentally ill but not judicially adjudged incompetent patient must be permitted to leave the hospital.

To avoid this outcome, many states have enacted specialized statutes authorizing Psychiatric Advance Directives (PADs). A PAD authorizes an agent to make decisions which the patient may later protest. If the same mentally ill patient had authorized his mother to be his agent in a PAD, the physician could have restrained the patient and rendered treatment provided for in the PAD over the young man’s express protest.

States authorizing PADs often impose very specific execution requirements not applicable to ordinary advance directives. For example, in Virginia, it is necessary to have the advance directive signed by two witnesses and the patient’s physician or licensed clinical psychologist, who must attest that the patient both was capable of making an informed decision and understood the consequences of the provision allowing for care to be delivered over his protest. For this reason and others, careful counsel and consideration is critical in creating an effective psychiatric advance directive.

Even carefully crafted psychiatric advance directives may not solve every crisis that can arise. Medical providers may be unwilling to detain a patient on instructions from the designated PAD agent if the patient simply denies the authority of the agent to make decisions.

  • The involuntary tools are better known, but not always user-friendly.

What if the seriously mentally ill client can’t or won’t give any authority at all for anything?

The United States Constitution prohibits involuntary mental health treatment for the admittedly mentally ill without proof of dangerousness to the patient or others. Such treatment often means confinement in hospitals with administration of antipsychotic medications. Mental treatment, even of a judicially committed mental patient, has constitutional dimensions. A lawfully confined patient may still refuse medicine and other treatments, absent certain conditions being met. What then?

The law’s standard blunt instrument for dealing with health care for incapacitated adults is a guardianship. In a guardianship proceeding, the state wrests decision making authority from an incapacitated person to vest it in a court appointee. The appointee – a guardian, a conservator, or both – makes decisions which are considered in the best interest of the respondent, subject to review by the court on a periodic basis.

While guardianship works well enough for some things, it’s not a panacea when serious mental illness is involved. Unless authorized by special statute as an emergency proceeding, it’s slow. It’s expensive. Worst of all, if the lawyer is unaware of the unique treatment issues which serious mental illness presents, the guardianship order may give the family a false sense of security. When the crisis comes, guardianship may confer insufficient authority to hospitalize and administer antipsychotic medicines over the objection of the incapacitated respondent.

When resistance to treatment is going to be an issue, the parent should be sure to let the guardianship lawyer know. Some states permit a guardian to admit a patient for emergency involuntary treatment, but only when this power is specifically requested and granted in the guardianship order. Without a specially crafted guardianship order, the family’s last alternative is involuntary civil commitment.

Civil commitment laws exist in every state. They offer a targeted, limited proceeding to obtain mental health treatment. In most jurisdictions, an involuntary commitment proceeding asks three questions. Is the patient mentally ill? If he is, is he also likely to present a danger to himself or someone else in the near future because of the mental illness? If so, is involuntary confinement the least restrictive alternative? If the answer is “yes” to all three questions, a court order holds the patient in a hospital for a limited period. While there, if offered treatment is refused, additional consent proceedings are available for involuntary administration of antipsychotic medicine.

Parents can prepare for these emergencies by contacting the public mental health authorities in their jurisdictions. When a police encounter occurs, it is helpful to know someone at the local mental health department who can intervene on behalf of the impaired son or daughter to advocate for hospitalization over incarceration.

Mental illness is terrible. Like every other evil, if denied, its shadow humiliates, terrifies and confounds us. Unacknowledged, it can grow until it becomes deadly, disrupting reason and strangling humanity.

Mental illness is not invincible. It is not triumphant. A year scarcely passes that does not see advances by brilliant scientists to treat and defeat it. At the same time, and until the cure is found, good lawyers skilled in guardianship, trusts and estates can help families manage and overcome the effects of the disease.

See us at the NAMI National Convention in Chicago, July 6th through the 9th, 2011. The Special Needs Alliance will be doing its 5th annual ½ day program. To find out more, see NAMI.org.

About this Newsletter: We hope you find this newsletter useful and informative, but it is not the same as legal counsel. A free newsletter is ultimately worth everything it costs you; you rely on it at your own risk. Good legal advice includes a review of all of the facts of your situation, including many that may at first blush seem to you not to matter. The plan it generates is sensitive to your goals and wishes while taking into account a whole panoply of laws, rules and practices, many not published. That is what The Special Needs Alliance is all about. Contact information for a member in your state may be obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs Alliance online.


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