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Mental Health Law

Mental Health Power of Attorney and Guardianship:
Efficacy and Barriers

Josh Mozell

 

 
Mental Health Power of Attorney and Guardianship  

The education of guardians, agents, service providers, first responders and lawyers is critical to improving access to the use of mental health-related guardianship and power of attorney in Arizona.

By Joshua Mozell (left), Gwen Levitt and Jennifer Weller

 

Just this year, a patient in a state of catatonia was admitted to a medical hospital. Her family members had active guardianship. Following medical stabilization, the woman required admission to an inpatient psychiatric facility. Due to the extent of her medical and psychiatric illness, no psychiatric hospital was willing to accept her, even with her guardian’s consent. The staff of the medical hospital tried to file a petition for involuntary psychiatric admission, but the agency tasked with approving petitions declined, stating that there was no need for a petition because the patient had a guardian with mental health powers.

The family hired a mental health lawyer and a psychiatrist to assist in transferring the ward to an appropriate treatment setting. After months of effort and delays in mental health care, a petition was finally accepted, and the woman was admitted involuntarily to a government psychiatric facility.

These situations and others in the state of Arizona occur frequently, costing time, money, and opportunity to improve the quality of life of individuals suffering from mental illness.

In Arizona’s mental health community, legal guardians and agents often encounter roadblocks when attempting to use conferred authority to seek psychiatric treatment for an incapacitated individual. These challenges are reported by medical providers, lawyers, agents, guardians, and even persons requiring mental health treatment. A frequent example is that of a treatment facility refusing to honor a guardian’s or agent’s authority when an attempt is made to obtain mental health assistance for a person needing treatment. As the result of obstacles, guardians and agents are forced to seek other avenues to obtain psychiatric treatment for the individual, which delays the provision of care and may escalate psychiatric crisis. All too often, the guardian “gives up” fighting the system, and the person requiring treatment fails to obtain timely intervention.

Complexities of the Powers

The types of powers that can be conferred on an agent or guardian and the processes that are involved are complex and potentially confusing — especially at the moment when a ward requires a mental health intervention. (For more detail on the processes and tools available, see the sidebar at right.) To illustrate just how complicated these legal powers and processes can be, researchers[1] conducted a panel discussion with mental health care stakeholders. They asked how psychiatric providers were to know if a patient had pre-existing legal powers in place. From their research, the authors estimated that only one-third of patients who interacted with psychiatric providers identified themselves as having designated an agent.

Next, the authors asked how psychiatric providers would determine if a patient was competent at the time that he or she executed the original legal directives. No physician or legal representative is required to be present at the time that these powers are designated. Therefore, it is impossible to know if the individual fully understood and had the capacity to execute the document at the time that it was created. Under Arizona law, to protect health care providers from civil or criminal liability, immunity is granted if the provider makes a “good faith” decision based on an “an apparently genuine heath care directive.”[2]

The third topic raised in the panel discussion was that 92 percent of stakeholders believed that psychiatric providers should assist a ward in the preparation of powers; however, participants were unsure just what type of involvement they should have in the process.

Fourth, stakeholders discussed a need to know if the legal powers were a current reflection of the ward’s beliefs about his or her care. In response to this concern, the researchers reported that several states designate an expiration date for directives (typically three to five years).

Stakeholders also wondered under what circumstances legal powers could be revoked, and what the process would be to terminate directives. The final discussion topic was expectations that all provisions of legal directives would be honored under all circumstances.

A particularly problematic area addressed by the panel was the situation in which conferred legal powers are inconsistent either with the standard of care or with the needs of the ward. It is possible for a ward to create an advanced directive (AD) or mental health power of attorney (MHPOA) stating that he or she wants no psychiatric intervention of any kind at a time when he or she is not competent to make mental health care decisions.

This issue was litigated in Hargrave v. Vermont.[3] In 1999, Ms. Hargrave executed a durable power of attorney (POA) for health care stating that she refused “any or all antipsychotics, neuroleptics, psychotropics, or psychoactive medications.” When Ms. Hargrave subsequently experienced an acute psychiatric crisis, the state of Vermont filed an involuntary civil commitment petition to override her directives in order to obtain necessary care for her.

The Second Circuit found that the state could not require Ms. Hargrave to receive psychiatric medication against the desires expressed in her AD, which had been executed at a time when she was deemed competent. The court ruled that the Vermont law allowing the state to involuntarily medicate individuals who had been civilly committed or judged mentally ill while imprisoned, despite having previously executed durable POA for health care to the contrary, was a violation of the Americans with Disabilities Act.

Opinion Survey Results

In order to understand the opinions and experiences of Arizona mental health stakeholders, authors of this article created an online survey requesting input regarding the use of the mental health guardianship or guardianship with mental health powers (MHG) and the MHPOA. A total of 238 surveys were distributed; 71 were returned, a response rate of 30 percent. Most respondents expressed that MHG and MHPOA were useful tools to obtain mental health care for incapacitated wards, and reported experiences in which the requested level of psychiatric treatment was obtained with use of designated legal powers.

Survey participants provided information indicating that the process of obtaining mental health treatment for wards was “cumbersome” and required significant coordination among parties. Respondents described limited understanding of the extent of an agent’s powers, as well as how and when those powers may be used. Participants reported specific examples of incidents in which MHG and MHPOA powers were declined — such as when an evaluating physician supported a ward’s position to decline inpatient psychiatric hospitalization; when a treatment facility declined to accept a mental health guardian’s consent to initiate or change psychiatric medications against a ward’s will; and when residential treatment facilities would not accept a patient using a guardian’s consent.

Despite the overall level of confidence expressed in the processes of MHG and MHPOA, there were reports of cases in which authority to consent to treatment was denied. In almost two-thirds of these situations, guardians sought involuntary treatment for the ward. Some treatment facilities filed a petition for involuntary court-ordered evaluation (COE) to admit the ward to the hospital, even though the ward already had an MHG or MHPOA in place authorizing a guardian/agent to consent to hospitalization. Some agencies declined to accept the authority of a guardian/agent to forcibly medicate a patient, and required a court-ordered treatment (COT) to be obtained through the involuntary treatment system. When a COT and an MHG exist at the same time, Arizona state law stipulates that the treatment and placement decisions of the treatment agency under the COT are controlling, unless the court orders otherwise.

Some psychiatric providers, wards, and even attorneys completing the survey reported a limited understanding of the differences between MHG and MHPOA. One of the major hurdles faced by psychiatric providers is the ability to learn of or locate the agent/guardian at the time of a mental health emergency in order to access their legal powers. The guardian/agent must present the proper legal documents to the treatment provider at the time of the intervention, and may not have these documents readily available. (Arizona has a free Registry for Advance Directives through the Arizona Secretary of State’s office; however, medical providers can only gain access to the documents if the ward, principal, guardian, or agent provides the user ID and password.)

Some agents expressed a lack of clarity about the extent of their legal powers. As a result, they did not always feel comfortable or confident enough to challenge decisions made by a treatment facility or a psychiatric provider when attempts to obtain care for a ward were questioned or refused. First responders (such as police officers) are a key group of individuals who intervene during psychiatric emergencies. Often, they neglect to honor the agent’s powers and are reluctant or unwilling to “force” a ward to be transported to a psychiatric-care facility against the ward’s wishes.

Positive feedback about the MHG/MHPOA process included that these powers provide consistency for the agent to make important treatment decisions for the ward. These powers reduced the number of difficulties and barriers to admitting a ward to a Level 1 behavioral health unit or to obtaining substance abuse treatment for the ward. Agents expressed that they were able to advocate successfully for their ward’s treatment and discharge planning, obtain Releases of Information for medical records, and act in the ward’s best interests.

Multiple Challenges

MHG and MHPOA are necessary to address situations in which a person is not competent to make mental health decisions for himself or herself. Current feedback from Arizona mental health providers and attorneys indicates that the processes of obtaining and using these legal powers are not well understood and can be cumbersome. Procedures for obtaining mental health powers must be streamlined while protecting the rights of the potential ward/principal.

Although there are self-service MHG and MHPOA packets, a lay person may find the paperwork lengthy and confusing. For example, an MHG requires completion of a “Report by Physician Form.” This document describes the nature of the potential ward’s medical/psychiatric condition, how the condition affects the person’s ability to care for himself or herself, and how the condition affects the person’s ability to make informed decisions about his or her care. It is not uncommon for family physicians or treating psychiatrists to decline to complete this form. Reasons include that the provider: may not feel qualified to complete the report; may fear jeopardizing the therapeutic relationship with the patient; and/or may wish to avoid an uncompensated appearance in court or testimony. If the ward’s primary physician declines to complete the form, the potential guardian may not know how to obtain an independent evaluator or have the funds to pay for an independent evaluator’s time.

When a ward objects to the activation of his or her MHPOA, it can be difficult to find a treatment provider who is willing to declare that ward incompetent so that the MHPOA can be invoked. The potential guardian may be unable to afford legal counsel to assist in this matter. These two situations leave a vulnerable person with a mental illness who is in need of psychiatric treatment without a guardian or a method to obtain necessary intervention except through the involuntary treatment system in Arizona.

There is a clear need for a more streamlined method to obtain MHG powers. Temporary emergency guardianship has the potential to be more readily conferred, especially if the request is generated by a medical professional. If the ward is considered to be in a relatively safe place (such as a medical facility) and is not considered to be at “imminent” risk, there may be no perceived urgency to set a hearing date. A delay of several months before a hearing, however, can be detrimental to the ward’s fragile mental health status. Such delays also can be costly when a potential ward is psychiatrically stable but placed in a high-cost medical hospital bed rather than an appropriate psychiatric facility. The potential ward may be refusing to cooperate with treatment or the appropriate placement but is impaired to such an extent that he or she cannot be discharged to his or her own care. On a positive note, when an MHG hearing is required, the Arizona court system has been generous in allowing physicians to testify telephonically at hearings, which is extremely helpful for providers with busy schedules and patient care responsibilities.

Practice Tips and Resources

Knowledge is often the key to success. There are attorneys who focus on MHG and MHPOA as part of their scope of practice. Using their expertise as consultants can be invaluable as they truly understand the intricacies of the process. Many difficulties can arise because MHPOA and MHG powers are misunderstood. Lawyers with such expertise are able to better educate involved parties such as medical professionals, police and hospital staff, as to why a certain action should or should not take place. This may streamline obtaining immediate care for a ward or principal.

 The inherent authority of a MHG/MHPOA is nearly useless if the guardian or agent does not understand their powers. It is imperative that the attorney involved educate the guardian or agent on the legal underpinnings of the MHG/MHPOA. They should understand the significance of their mental health powers and how they are used. To this end, some attorneys provide packets with citations to the legal authority and pertinent legal language that can be referenced quickly during conversations with providers.

Consultation on possible roadblocks is also important. Guardians/agents should understand that there may be barriers when an attempt is made to place a ward or principal in a psychiatric facility, administer medications, or to access the involuntary commitment process. An attorney should thoroughly explain why this may happen and strategies to overcome these hurdles so as to prepare the guardian or agent for future decisions for the ward or principal. Guardians and agents also should be made aware of the mental health resources in the area. This will improve the guardian or agent’s ability to properly advocate for the ward or principal, and the knowledge of available services (like the crisis line, police well-checks, residential housing) may serve as a stop-gap when care cannot be provided immediately.

Revocation of a MHPOA can become an issue. This is a potential problem that is best addressed during the education process. At the time this article is being written, under Arizona law a MHPOA can be revoked at any time, whether the principal has capacity or not, unless the principal specifies in the MHPOA that it will be irrevocable when the principal is incapacitated. A new bill recently presented to the 2016 Legislature would mandate that the principal is unable to revoke the MHPOA or disqualify an agent while the principal is deemed incapable as defined in A.R.S. § 36-3281.[4] The conversation about when the principal is and is not able to revoke should take place in every consultation on MHPOA. The irrevocability of the document also should be delineated plainly so that the reader has a clear understanding of its provisions.

Although any physician, psychologist or registered nurse can complete the court-required Medical Professional’s Report for guardianship, it is often best to engage mental health professionals in the community who regularly perform evaluations in this specific area. Those attorneys who specialize in MHG and MHPOA matters are generally aware of the mental health experts in your area to contact. Judges and fiduciaries also can be resources in identifying both legal and mental health experts in this field.

As it cannot be predicted when the use of a MHG/MHPOA is necessary, the guardian/agent should be directed to keep (1) an easily accessible paper copy of the MHPOA or the Letters of Guardianship, and (2) an electronic copy that can be emailed to providers who may need it.

With respect to the mental health expert’s opinion, it is only as good as the information gathered. In order to provide a solid opinion to the court on the matter of MHG or MHPOA, collateral information can be quite important. The Medical Professional’s Report must address the potential ward’s current and past psychiatric treatment history as well as current medication regimen, both medical and psychiatric. For obvious reasons, the potential ward may not be able to provide a reliable history so obtaining medical records is important.

Obtaining information about the potential ward’s financial situation, daily functioning, and living situation is also necessary. A “house call” can be very enlightening as a barometer of the potential ward’s overall functioning and may be far more valuable than an office visit. Identifying and interviewing family, friends and caregivers is also crucial, not only to obtain another view of the potential ward, but also to ferret out any potential conflicts of interest or undue influences.

Although instituting mental health powers does not require a report to the court or evidentiary process, the background investigation should be nearly as detailed. It is very important to establish that the principal is fully informed and competent to execute such a document. Gathering information about the principal’s psychiatric treatment history, trajectory of the illness, and long-term functioning is necessary to determine if the principal’s wishes are appropriately represented, feasible, and relevant. Ensuring that the designated agent has the principal’s best interests in mind is also critical. It is also useful to engage the current treating provider in the process.

Patience and flexibility are the keys to success when working in this arena. The potential ward may not be overly cooperative with the process, as they may not want or think they need any oversight. He or she may be quite impaired as a result of their illness and may also be unable to actively and meaningfully engage in the process. He or she may make unusual, unrealistic, or inappropriate demands on you and your time. Needless to say, all parties involved will have many questions about the process as it can be so cumbersome and confusing. You will need to be available to your client(s) to answer questions and “hold their hand” through the process. The potential ward may need extra assistance to keep and make appointments. At times you may take on the role of social worker rather than that of a lawyer. It may be extremely helpful to have an assistant who is knowledgeable about the process who can act as your client guide and support.

Arizona Revised Statutes 14 and 36 have previously been mentioned and are the mainstay of the state’s guardianship laws. Other than the Hargrave[5] decision, local case law of interest is Rasmussen by Mitchell v. Fleming,[6] which addresses the issues of what is in the best interest of the patient standard. In that case, a patient in a vegetative state was assigned a guardian, who instituted a “Do Not Resuscitate” order. The guardian ad litem objected to this order because some staff and a family friend believed the ward had some cognitive functioning. The court ruled that the guardian could exercise the right to refuse treatment using the “substituted judgment” model of what the ward would have wanted if the ward was able to communicate her wishes. Surrogate decisions for substituted judgment can be found in Ruvalcaba v. Ruvalcaba,[7] where the appeals court overturned the lower court’s decision to disallow the guardian of an incapacitated ward to file for dissolution of the ward’s marriage, holding that the guardianship powers encompassed such decisions.

Conclusion

The education of guardians, agents, service providers, first responders, and lawyers is critical to the process of improving access to and use of MHG and MHPOA in Arizona. In the age of modern technology, it is possible to create a “one-stop-shopping” website where potential guardians may obtain information and education about MHG and MHPOA processes. This website could provide downloadable self-help packets as well as links to instruction manuals, tutorials, and Frequently Asked Questions for each type of user.

If treatment facilities and providers could access information about the provisions and powers of MHG and MHPOA and guidance about how to approach situations when a patient presents with MHG or MHPOA, it would eliminate many of the barriers identified by Arizona stakeholders to assisting individuals with mental illness in receiving timely intervention. The authors of this article are willing to present information about this topic to local advocacy groups, mental health providers, and legal providers. It is important that the faculty of local medical training programs, both medical and psychiatric, ensure that the doctors of the future are fully informed about these legal processes.

The authors thank Frazer Ryan attorneys Chick Arnold and Jim McDougall for their guidance and assistance in this project.

[1] Debra Srebnik & Lisa Brodoff, Implementing Psychiatric Advance Directives: Service Provider Issues and Answers, J. Behav. Health Ser. R. (July/September 2003), at 30:3; 253-268.

[2] A.R.S. § 36-3205(A).

[3] 340 F. 3d 27 (2nd Cir. 2003).

[4] SB 1169, State of Arizona, 52nd Legislature, Second Regular Session, 2016.

[5] 340 F. 3d at 27.

[6] 741 P.2d 667 (Ariz. Ct. App.1986).

[7] 850 P.2d 674, 682 (Ariz. Ct. App. 1993).

 

 

Agent and Guardian Tools


[1] Arizona Revised Statutes, Title 36, Article 4 and Article 5.

[2] A.R.S. § 14-5304.

[3] Id. § 14-5312.01.

[4] Id. § 36-3221.

[5] Id. § 36-3281

[6] Id. § 36-3251.