Conservators, Guardians & Mental Health Commitments
A Conservator is a person appointed by the Court to handle the financial matters and property of a minor or adult person who is incapacitated. An incapacitated person is someone who is physically and/or mentally unable to care for himself or herself. In some cases the person has a chronic use of drugs or alcohol, is confined, or is being detained by a foreign power, or has disappeared.
A Conservator may be appointed when a person can no longer handle property or manage business affairs. The person might have property that will be wasted without a Conservator or be in need of funds to support them. In many cases, the person has entered a nursing home and has become incapacitated and needs his/her property to be sold in order to generate funds to support them while in a nursing home.
Once the petition for appointment of a Conservator is filed for an adult, the Court will appoint a Guardian ad Litem. If the petition is granted, the Court will set a bond for the conservator and may set the first accounting period. The Conservator must file an inventory with the Court within 90 days of appointment. The Conservator must keep a record of all transactions, both incoming and outgoing, and give an accounting as the Court directs.
A Guardian is a person appointed by the Court to make decisions concerning a person's physical needs. An incapacitated person is someone who is physically and/or mentally unable to care for himself/herself. In some cases the person has a chronic use of drugs or alcohol, is confined, or is being detained by a foreign power, or has disappeared.
A Guardian may be appointed when a person can no longer make decisions regarding their personal needs. In some cases a Guardian might become necessary because the person might have suffered a stroke or other illness and be unable to respond or make medical decisions alone.
Once the petition for appointment of a Guardian is filed for an adult, the Court will appoint a Court Representative and a Guardian ad Litem.
Involuntary commitment is a legal procedure by which a person is placed in the custody of the State Department of Mental Health for long-term treatment. This is done only if necessary, and after every effort is made to provide treatment for the person on a voluntary basis. In order to meet the criteria for involuntary commitment, there must be clear and convincing evidence that the person is mentally ill and poses a real and present threat of substantial harm to self or others. Other required elements are that the person is unable to make a rational decision regarding the need for treatment, and that without such treatment, he or she will continue to suffer mental distress. The evidence brought forth by the petitioner must include personal knowledge of specific acts or behavior which signifies a real or present danger.
The petitioner is the individual who goes to the Mental Health Center and asks that measures be taken regarding a mentally ill person, of at least 19 years of age. This is done in the county where the respondent is currently located. The petitioner is usually a family member, but any person may file a petition seeking commitment of another, provided that all the elements are met. Once the petition is filed and probable cause is determined, the patient may be involuntarily confined in a designated mental health facility. A hearing is then set, with notice given to all parties concerned, including the respondent. At the hearing, testimony is heard from all parties, and the Probate Judge determines whether the criteria for commitment have been met. Attorneys are appointed for both petitioner and respondent and all hearings are open to the public, unless otherwise requested by respondent.
If the criteria for commitment are met, then the Court will order inpatient treatment. Any treatment ordered must be the least restrictive alternative available and will take place at a designated mental health facility. The length of treatment is determined by the treating physician, and may be up to 150 days before a subsequent hearing on the merits will be necessary. If the criteria for commitment is not met, then the petition will be dismissed. At no time may the Court order treatment for substance abuse alone, however there are occasions when a dual diagnosis of both substance dependence and mental illness is involved. In these cases, treatment for substance abuse must be voluntary, even if done simultaneously with psychiatric treatment.
The purpose of involuntary commitment is to provide psychiatric treatment for mentally ill individuals who have become a danger to themselves or others, and are refusing voluntary treatment. However, the Court is ever mindful of the serious deprivation of liberty which this process necessarily involves. The Due Process Clause of the Fourteenth Amendment to the U. S. Constitution applies to all citizens, whether mentally ill or not, and every effort is made to ensure that rights are not compromised and unnecessary treatment is never tolerated. The Probate Judge will always take the least restrictive measures to get help for a person with mental illness.