Discover the essential process of guardianship for individuals with mental illness in this informative video or read the entire script below.  Learn about legal and clinical aspects, including decision-making authority, hospital admissions, and post-care planning.

If you’re seeking guidance on the guardianship process, contact us at 212-709-8112 or to learn more or book a consultation here:

Your path to understanding and supporting your loved one starts here.

Does your loved one have a mental health illness? Are you trying to help them get treated but don’t have the authority to do so? An Article 81 Guardianship may help, but – unfortunately – it does not give you 100% authority that you may be looking for.

When is a Guardian Needed? In situations where someone is unable to make decisions due to mental illness, a legal guardian steps in to help. This is especially important when the person needs psychiatric care in a hospital. As mental health issues become more common and more people need guardians, it’s crucial that everyone involved understands how the process works.

Mental illness covers a range of conditions, including schizophrenia, bipolar disorder, trauma disorders, and more. Symptoms can include things like hallucinations, confusion, aggressive behavior, isolation, refusal to take medications, and trouble taking care of oneself. Sometimes there are dual diagnoses of a mental illness and drug abuse. These conditions can seriously affect decision-making abilities.

Is a person legally incapacitated? Only the Guardianship Judge can make the final determination about this question. The guardianship petition should explain the psychiatric history, prior hospitalizations, prescribed medications, and the pattern of symptoms or behaviors that impair the person’s ability to manage their personal and financial affairs. During the Guardianship hearing, frequently family, friends, and treatment providers testify. The Alleged Incapacitated Person needs to be present at this hearing and has a right to argue on their own behalf.

Guardians have the ability to access medical records to provide proper care to the incapacitated person. Laws like HIPAA protect patient privacy, but guardians have the authority to access medical records when necessary. This ensures proper communication with treatment providers. Such communication is essential, especially when the Incapacitated Person is hospitalized and receiving psychiatric treatment in a facility. The Guardian’s authority – as long as it is properly documented in a court’s order – will override the incapacitated person’s objections.

When someone with mental illness needs hospitalization, there are different ways to get them there. They might go voluntarily if they’re willing, or they might need intervention if they’re uncooperative. This could involve calling 911 for immediate help, involving a mobile crisis team for an evaluation, or even getting a court order for hospitalization.

Mental Hygiene Law Article 9 governs the psychiatric hospital admission. Ultimately – it is the clinician and NOT the guardian who makes the decision about the admission. The Guardian cannot consent to the psychiatric hospital admission – instead, the guardian’s role is to advocate for the person’s needs. Guardian provides information about the person’s history, symptoms, and behavior to help the hospital’s clinical team understand the situation and make informed decisions about treatment. An individual may be held for up to 15 days involuntarily if suffering from a mental illness for which immediate observation, care and treatment in hospital is appropriate, and the individual’s condition is likely to result in serious harm to self or others. The involuntary stay can be up to 60 days if there is a threat of substantial physical harm to self or others.

In New York, neither a guardian nor a health care agent can authorize the administration of psychotropic medications. Treatment teams – including clinicians and social workers – can make decisions about medication over the incapacitated person’s objection, following specific legal steps and a Judge’s authorization . Guardians can only provide important information about the person’s behavior and medication history to help this decision-making process.

Planning for when the incapacitated person leaves the hospital starts as soon as they’re admitted, as the inpatient psychiatric placements are usually short. Long-term treatment is generally delegated to outpatient care programs. The guardian works with the treatment team to arrange outpatient care, medications, and housing. A practical alternative is an Assisted Outpatient Treatment program – an extremely valuable tool for mentally ill individuals who have in the past refused services and medication in the community and are frequently hospitalized. This process is lengthy and requires a new court hearing. The application must be completed by a hospital, but the Guardian can advocate and assist the hospital throughout the process.

An Article 81 guardian has a vital role in the care of someone with mental illness. Understanding the legal and clinical aspects of the process is essential for proper advocacy and support. If you have questions about any steps of the Guardianship process, please click the link below to make an appointment or call us at 212-709-8112 and we will be happy to assist you.