Mental illness affects tens of millions of people in the U.S. every year. About one in four adults (approximately 26%) suffer from some type of mental illness. This disease spares no one. In fact, young people (ages 11-17) are currently struggling the most with their mental health.
Seeing a loved one succumb to mental illness is incredibly challenging. You want to protect and care for that person in every way possible, but sometimes the process of doing that is difficult.
In this article, we will explain what you should know about guardianship and mental illness.
What Is Mental Illness?
Mental illness, or mental disorders, are conditions that impact how a person feels, thinks, reacts, and behaves. Some mental illnesses are temporary while others last a lifetime. Sadly, these disorders can keep a person from holding a job, having relationships, and functioning in everyday life.
There are many different types of mental illness ranging from moderate to severe. Some common types are:
- Anxiety disorders—obsessive-compulsive disorders, phobias, panic disorders;
- Mood disorders—depression, bipolar disorder;
- Personality disorders—antisocial personality disorder, borderline personality disorder;
- Psychotic disorders—schizophrenia;
- Eating disorders—anorexia and bulimia; and
- Post-traumatic stress disorder.
When a person with mental illness acts in a drastically harmful or irrational way, risks causing harm to themselves or others, or can no longer make rational decisions, it is probably time to step in. A guardianship of an individual with mental illness may be the best course of action.
What Is a Guardianship?
A guardianship— referred to in some states as a conservatorship—is a legal proceeding where a person or entity (the guardian) is granted the authority to make decisions for another person (the ward). Guardianship of an individual with mental illness may be appropriate if the person lacks the capacity to make rational or reasonable decisions. There are different types of guardianships.
Guardian of the Person
A guardian of the person is responsible for making personal and physical decisions for the ward, such as living arrangements, social activities, and medical care.
Guardian of the Property
A guardian of the property must identify and safeguard all of the ward’s assets. This includes bank accounts, personal property, real property, capital market investments, insurance settlements, and business interests. The guardian must manage the assets responsibly and for the benefit of the ward.
Guardian of the Person and Property
The court can grant both guardianship of the person and property, but it does not have to. This is also referred to as a plenary guardianship.
Limited Versus Full Guardianship
The court has full discretion to grant either a plenary or limited guardianship. A limited guardianship is where the guardian only has specific decision-making powers. Full guardianship gives the guardian complete authority to make healthcare, financial, and personal decisions, just as the ward would if he or she were able.
Temporary Versus Permanent Guardianship
The process to get a permanent guardianship can be lengthy. An option is to petition the court for a temporary guardianship while the permanent guardianship proceeding continues.
In extreme cases, a court will grant an emergency temporary guardianship (ETG). This takes place after a petition for guardianship is filed but before there has been a ruling. The court will only grant an ETG if it finds there is an imminent threat to the ward’s mental and physical health and safety or the ward’s property is in danger of misappropriation. An ETG lasts for 90 days or until a guardian is appointed, whichever comes first. If the emergency conditions continue to exist, the ETG may be extended for an additional 90 days.
Keep in mind, if your loved one has already executed advanced directives, such as a power of attorney or health care surrogate, guardianship may not be necessary. Courts only grant guardianships involving adults if there is no less restrictive alternative that is appropriate and available.
Since guardianships deprive the ward of decision-making power, it is so important to work with an experienced guardianship lawyer. At Beller & Bustamante, P.L., we are here to help you through the guardianship process. Even if you are not sure whether guardianship is the right decision, we can assist you in weighing all options.
Who Can Be a Guardian?
Any Florida resident 18 years or older can be a guardian. Nonresidents may also serve, but only if they have some familial relationship with the ward. Financial institutions, non-profit corporations, and qualifying for-profit corporations may also be guardians. A health care provider of the ward can serve as guardian, as long as there is no conflict of interest with the ward’s best interests.
How Does the Court Determine a Person Lacks Capacity?
The judge must make a finding that the individual lacks the ability to care for themself or their property.
When the person filing for guardianship petitions the court, he or she will present facts to support their claim that the person lacks the capacity to make their own decisions. The court will then appoint a three-person committee, typically made up of a doctor, a nurse, or other medical professionals, and a third person who can be a medical professional, social worker, or lay person who has completed training to be on an examining committee. Each member evaluates all of the information presented regarding the person’s capacity and meets directly with the person. The evidence will include facts presented by the petitioner and typically a physical, mental, and functional evaluation of the person. Each committee member then files a report of their findings with the court. The judge will then decide whether the person is incapacitated and appoint a guardian if necessary.
What you should know about guardianship and mental illness is that they are both difficult realities to accept. Not only must you come to terms with your loved one’s impaired mental state, but you have to decide whether it is time to make decisions for them.
If your family member or friend is suffering from a mental illness, speak with our guardianship legal team about the best course of action. At Beller & Bustamante, we want to educate you on the process and get you the best result. Our lawyers have over 40 years of combined experience. With so much at stake, we are ready to put our skills and knowledge to work for you.
Contact us online or call us at 904-288-4414, and we will be happy to discuss your case today.