Conservatorships can help protect those with serious mental illness.
by Carolyn Reinach Wolf
KEY POINTS
- Those petitioning for a conservatorship/guardianship must meet a high legal burden of proof demonstrating to a judge a person’s “incapacity."
- Conservatorships/guardianships don’t have to be permanent; removing them can be a key motivator for individuals to make positive choices.
- The regularity with which those with serious mental illness break with reality creates a real need for the protections these laws provide.
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| Source: David Veksler/Unsplash |
Conversations about court-ordered conservatorships/ guardianships (the correct term depends on the state in which the proceeding is brought) have recently made their way into mainstream news. The New York Times-produced documentary about Britney Spears, along with the ongoing hearings about her own conservatorship, amplified voices behind the #FreeBritney movement, which seeks greater autonomy on behalf of the pop star. Then Republican lawmakers jumped into the conversation, requesting Congress to hold hearings on conservatorships out of concern that they “deprive individuals of personal freedoms at the behest of others through the manipulation of the courts.”
Few voices in these debates have demonstrated a full understanding of the criteria, purpose, and benefits of conservatorships/guardianships for those who suffer from serious mental illness or related mental health issues. As an attorney who concentrates on guiding families through the complex landscape of legal issues that impact loved ones with serious mental health issues, I thought it important to weigh in.
Why We Have Conservatorships
Historically, conservatorships/guardianships were designed to protect aging individuals with decreasing faculties from those set on taking advantage of them and securing their (often vast) resources. The statutes offer a means of assigning independent third parties the legal authority to make decisions on their behalf to best preserve their wellbeing and protect their financial interests.
Since then, the model has been adopted to offer similar protections for those who – due to a serious mental health condition – struggle to care for themselves and manage their financial affairs or use their own resources in their best interest. While statutes differ from state to date, they generally grant designated third parties the legal authority to perform such actions as, for example:
- Accessing confidential information, such as financial and health records
- Communicating with medical and mental health providers without the individual’s consent, though in their best interest
- Hiring services to benefit the individual, including cleaning services, case managers, etc.
- Encouraging compliance with medical and mental health treatment – for example, scheduling and accompanying individuals to their appointments
- Marshaling assets and protecting them against frivolous spending
- Paying bills
- Entering into contracts (i.e., signing a lease)
- Retaining counsel to defend against a civil proceeding, such as an eviction proceeding
Skeptics who view this authority as overly broad should understand that those petitioning for a conservatorship or guardianship must meet a high legal burden of proof demonstrating to a judge a person’s “incapacity,” meaning they cannot adequately understand and appreciate the nature and consequences of their own inabilities and are likely to suffer harm because of them. Even after this burden of proof is met, those assuming the role of conservator/guardian are subject to strict, ongoing court supervision, which provides oversight over key decisions (i.e., where an individual is living) and approval of fees for services.
Bigger picture, those critical of conservatorships/guardianships don’t often have a birds-eye view of the necessity of these laws and the crucial protections they offer. Many mental health conditions make individuals extremely vulnerable to injury, theft, and fraud, while preventing them from recognizing these vulnerabilities as well as other limitations. This can create a perfect storm that puts people in terrible personal jeopardy and financial distress. (For example, many people with bipolar disorder often engage in excessive spending during periods of mania, and can also find it challenging to stay employed.)
Conservatorships Are Not Always Forever
Conservatorships/guardianships don’t have to be permanent. Once in place, the legal burden shifts to the individual to demonstrate to a court that the conservatorship/guardianship is no longer necessary – that they can keep themself safe and manage their personal and financial affairs. This often serves as a motivator to help individuals become compliant with treatment, gain insight into their illness and stabilize, encouraging them to make the positive choices they need to stay healthy and independent.
As someone who regularly fields calls from family members who are frantic with worry about the safety of loved ones suffering from mental illness and related mental health challenges – including individuals who cycle in out of hospitals and jails, and often disappear altogether for weeks or months – I believe conservatorships/guardianships can be absolutely crucial. The regularity with which people with serious mental health conditions go off their medication, become symptomatic, and break with reality creates a clear need for the protections conservatorships/guardianships provide.
Those who care about the rights of individuals with serious mental
health challenges could help by lobbying their representatives for more
state and federal funding for crucial services like supportive housing
and long-term treatment. These are programs that can go a long way
toward helping individuals live full and independent lives, and support
those who are able to petition and prevail in discontinuing their
conservatorships/guardianships when their limitations or incapacities
improve to the point of recovery and stability.
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