Commitment Proceedings, Legal Guardianships and Advanced Directives: Mental Illness & NJ Law
by Lauren Marinaro, Esq.
Practice Area: Guardianship
This article will focus on three areas of the law that are likely to touch the lives of consumers and their friends and family. They are commitment proceedings, legal guardianships, and advanced directives for mental health care. If you need more information or representation on legal issues relating to mental illness, contact the law firm of Fink Rosner Ershow-Levenberg Marinaro LLC.
Psychiatric Advanced Directives and Powers of Attorney
If a consumer is living in the community and learning to cope with his or her mental illness, family members should engage that person in a discussion of what should happen if a future psychiatric episode causes a setback. They should encourage the individual to appoint someone he or she trusts to be the consumer’s Durable Power of Attorney for financial affairs, meaning someone who can step in and act for him if he or she is ever not competent to act for himself (all of the powers of a guardian without going through a guardianship proceeding, which is explained below).
Additionally, the mentally ill individual should seriously consider a Psychiatric Advance Directive (PAD). A PAD is a document that appoints a representative, which should be a family member or friend that the consumer trusts, to act for the consumer if that person has a psychotic or severe depressive episode. It also indicates what treatments, doctors and facilities the mentally ill individual would and would not prefer. This document, unique to New Jersey, is legally binding unless the individual’s treating psychiatrist must deviate from the instructions of the PAD because the treatment or placement is essential and there are no other options available. The PAD should be kept on file with the mentally ill individual’s attorney and should be given to the individual’s doctors, family members, landlord or whoever else may interact with the individual to contact the representative and remind first responders what the mentally ill individual’s directive says about his or her wishes. It may also be put on file with the New Jersey Division of Mental Health Services, so that it may be accessed electronically by institutional and non-institutional service providers. This document must be witnessed by someone who is neither a family member nor a service provider
If a consumer has a serious episode of psychosis, the process of commitment may quickly come into the conversation. A consumer can be involuntarily committed to a psychiatric hospital if a court determines that there is clear and convincing evidence of four things: (1) that the individual has a mental illness, (2) the mental illness causes the consumer to be dangerous to self, others, or property, (3) appropriate services are not available in the community, and (4) the consumer is not willing to be admitted voluntarily.
The commitment process usually begins when the consumer is evaluated and observed for 24 hours at a licensed screening center, usually a hospital. If the evaluator thinks that the consumer cannot receive appropriate services in the community and needs to be committed to a psychiatric facility, and a psychiatrist agrees, paperwork will be submitted to the court in support of a commitment petition. A temporary commitment to an appropriate facility can then be ordered. The commitment petition must be served upon the consumer. If the consumer cannot afford to hire an attorney, the court will appoint one for him or her. The commitment hearing must be held within 20 days of the temporary commitment.
If the consumer wishes to voluntarily commit him or herself, and then wishes to leave the facility, he or she must inform the facility 48 hours in advance so that the facility can either plan for a safe and orderly discharge or prepare for an involuntary commitment proceeding. If a consumer is a resident of an in-patient mental health facility either as a voluntary or involuntary patient, he or she has substantive civil rights guaranteed by the New Jersey Patient’s Bill of Rights. An advocate or attorney for the consumer can assert these rights to the service providers.
A family member or friend may determine that a consumer is in need of so much assistance that they may need to become that individual’s guardian, either in a limited or non-limited capacity. To become someone’s guardian, you must make a Verified Complaint for a Determination of Mental Incapacity to the Chancery Division of Superior Court in the county where the consumer lives. The Petition states that the individual suffers from “chronic functional impairment to such a degree that (s)he lacks the cognitive capacity to make rational decisions regarding his/her own safety, health, well-being and financial affairs,” and that the person who seeks to be guardian understands the individual’s needs, desires to protect the individual’s well being, and can carry out the duties of guardian. This complaint must be accompanied by two doctor’s certifications supporting the allegations of the Complaint and an affidavit of the assets of the alleged incapacitated person.
Once the Complaint is filed and the consumer is served with the Complaint, he or she may retain an attorney or an attorney will be appointed for him or her to appear at a hearing, and the consumer may contest the guardianship if the consumer wishes, on the grounds that he or she is not, in fact, mentally incapacitated. If the consumer is adjudicated incapacitated, and a guardian is appointed, that person will manage the day-to-day affairs of the incapacitated person and seek other actions on behalf of the incapacitated person with the permission of the court (i.e. selling a home). The guardianship can be limited by the court to certain areas, such as living arrangements and financial management, if the court finds that to be appropriate. If the incapacitated person/consumer does recover and believes he or she can be independent, the consumer can apply to the court to be “restored to full or partial capacity” and the legal guardianship would be either revoked or limited.
If they have shown good cause to the court, the guardian of the person of the ward may initiate the voluntary admission of a ward to a State psychiatric facility or a private psychiatric facility. A ward admitted in this way would be like a voluntarily admitted patient, which rights would be exercised on behalf of the ward by the guardian. The guardian of the ward would exercise the ward’s rights in a manner consistent with the wishes of the ward except to the extent that compliance with those wishes create a significant risk to the health or safety of the ward. If the ward objects to the initiation of voluntary admission for psychiatric treatment or to the continuation of that voluntary admission, the involuntary commitment process would apply. The ward may get a court-appointed attorney or guardian ad litem if he or she objects and wishes to fight the admission.
These legal issues are but a few of the numerous issues that consumers and their friends and families may face. The law firm of Fink Rosner Ershow-Levenberg Marinaro LLC in New Jersey can assist with the spectrum of legal issues, whether they relate to public benefits (including SSD, SSI, and Medicaid), wills, trusts, powers of attorney, legal guardianships or matrimonial issues, and do so with sensitivity and a sense of optimism.