W. Tyler Moore, PC

Do I need a guardianship for a mentally ill relative?

There are guardians of the person and guardians of the estate.  Both guardianships are legally complicated, time consuming, and potentially expensive. This blog discusses guardianship of the person.  

If someone is physically unable to look after himself because of age, infiirmity, or mental issues, then it's time to consider a guardianship of the person. There are drawbacks to a guardianship of the person.  

As the full guardian of the person, you could decide where the Ward would live, to limit his contact with friends and family, the medical or psychological treatment he would receive, and where he could go.  The MAJOR problems with such a guardianship are (1) a guardian cannot protect the Ward from making bad decisions, (2) nor could a guardian force a Ward to take medication. In other words, you can't stop the Ward from running away or refusing to take the medication. 

A guardian cannot commit someone to a mental health faciltity for treatment without following the same mental health commitment process used for people without guardians.

Guardianship and mental health commitment are two separate legal proceedings and may be determined by different courts or in the same court.  As an interested party, you can file a sworn witten application asking the mental health court to order mental health services for your loved one without necessity of becoming a guardian.  If you file this type application, you must include written information from a physician regarding the mental illness and evidence of the person being a threat to himself or others.  Other options include asking the county or district attorney or other adulty to file the sworn written application or you can contact law enforcement assigned to mental health matters. If they agree with the need for evaluation or treatment, they can take the necessary legal steps without your involvement.

When the person is responding well to treatment, ask him to specify his treatment preferences by executing a declaration for mental health treatment before the need arises again.

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