Legal Provisions for Restricting Freedom of People with Mental Disability

1. Legal Provisions for Restricting Freedom of People with Mental Disability • Emergency Custody • Extended Custody for Mental Evaluation • Civil Commitment • Emergency Guardianship • Conservatorship • Guardianship

2. Guardianship

3. 1818 Georgia Provisions • “The inferior courts…shall have full power to appoint guardians for the persons and estates of all idiots, lunatics and persons insane; and …to require bond and good security from all guardians appointed in pursuance of this act. “

4. Incompetency vs. Mental Illness • What distinguishes these categories? • What separates incompetency from MR? • What separates incompetency leading to guardianship from the incompetency of children?

5. “Mentally Ill” "Mentally ill" means having a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. O.C.G.A. § 37-3-1  (2007)

6. “Mentally retarded person" means a person having a significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and originating in the developmental period. 37-4-2

7. Incompetence • Not necessarily “insane” or “mentally ill” • Subject to a legal determination thathe/she lacks sufficient capacity to make or communicate significant responsible decisions concerning his/her health or safety

8. Mentally Incompetent Persons • After …the affairs of a person are vested in a guardian, the power of such person to contract, even though restored to sanity, shall be entirely gone; any contracts made by such person shall be absolutely void until the guardianship is dissolved. 13-3-24

9. Guardianship Reform • Focused on extensive assessment of capacity in context of daily living • Heightened due process steps, including • Notice • Right to presence at hearing • Right to Counsel • Access to impartial evaluators • Ongoing judicial or administrative monitoring

10. Vocabulary of Guardianship • Guardian • Conservator • Committee • Ward • Incompetent [complete, irrevocable] • Incapacitated [partial, situational, temporary]

11. Review How is Mental Illness Diagnosed? • Physical Examination • Psychiatric History • Mental Status Examination

12. Review Mental Status Examination • General Appearance • Attitude Survey • Motor Behavior • Affective State • Thought Processes • Thought Content • Perceptive Capabilities • Intellectual Functioning • Orientation • Memory • Judgment

13. Review Mini Mental Status Exam • Used as a screening instrument • Includes: • Orientation • Registration • Attention and Calculation • Recall • Language

14. Goals of Geriatric Psychiatric Exam • Is a psychiatric disorder present? • Are there any treatable or reversible causes for the condition? • Assess functional level of the patient and determine degree of disability, if any. • What support system does the patient have and what additional resources might they need

15. Geriatric Psychiatry • A geriatric psychiatrist is a specialist with medical training in the diagnosis and treatment of mental disorders that may occur in older adults.

16. Common findings in Geriatric Psychiatric Exam • Depression and anxiety • Dementia • Delusional Disorders (sometimes psychosis as part of schizophrenia) • In hospital settings, Delirium

17. Psychiatric Evaluation:Other Issues • Could the problem be an underlying medical disease (e.g. polypharmacy)? • Is the patient’s behavior part of normal aging?

18. A Finding of Co-morbidity is Common and Should be Considered in any Mental Health AssessmentComorbitity is also a major Confounding Issue in Legal Disposition

19. Dementia • Syndrome characterized by impairment in three of five neurophysical and behavioral domains: • Memory/Language • Speech • Visuospatial ability • Cognition • Mood/Personality

20. Types of Dementia • Alzheimer Disease • Cerebrovascular Dementia • Parkinson’s Disease

21. Alzheimer Disease • A progressive and fatal brain disease • The most common form of dementia • No current cure • Definitive diagnosis only on autopsy

22. Alzheimer Disease • Symptoms: • Memory loss • Difficulty performing familiar tasks • Problems with language • Disorientation to time and place • Poor or decreased judgment • Problems with abstract thinking • Misplacing things • Changes in mood or behavior (note overlap) • Changes in personality • Loss of initiative

24. Functional MRI Exam

25. Alzheimer’s Brain after Autopsy

26. The difference between Alzheimer's and normal age-related memory changes

27. Cerebrovascular Dementia • Based in cerebrovascular (brain & blood vessel) pathology • Abrupt onset with fluctuating or gradual decline in cognitive function • Often history of stroke or localized neurological signs • Treatable, particularly if identified early • Can be present at the same time as other dementias

28. Brain After Stroke

29. Parkinson’s Disease • Symptoms: • Hypokinesia (for example difficulty in initiating movement), • Slowness of movement, • Tremor in the limbs, face or tongue, • Rigidity and gait disturbance

30. Factors leading to a declaration of Incompetence • Decrease in Functional Ability • Decrease in Cognitive ability • Decrease in Judgment/Responsibility

31. Adult Guardianship 29-4-1 •  The court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.

32. Adult Guardianship 29-4-1 • An adult shall not be presumed to be in need of a guardian solely because of a finding of criminal insanity or incompetence to stand trial or a finding of a need for treatment or services under other provisions of the law.

33. Adult Guardianship 29-4-1 • All guardianships ordered pursuant to this chapter shall be designed to encourage the development of maximum self-reliance and independence in the adult and shall be ordered only to the extent necessitated by the adult's actual and adaptive limitations after a determination that less restrictive alternatives to the guardianship are not available or appropriate.

34. Qualifications of Guardians 29-4-2 • No individual may be appointed as guardian of an adult who: • is a minor, a ward, or a protected person; • has a conflict of interest with the adult unless the court determines it is insubstantial or that the appointment would be in the adult's best interest; or • is an owner, operator, or employee of a long-term care facility where the adult is receiving care, unless related to the adult by blood, marriage, or adoption.

35. Order of preference in selection of guardians 29-4-3 • The court shall appoint as guardian that individual who will best serve the interest of the adult, …the court may disregard the preferences listed … only upon good cause shown. • At any time prior to the appointment of a guardian, an adult, their spouse, adult child, or parent may nominate in writing an individual …and…that nomination shall be given preference

36. Order of preference in selection of guardians 29-4-3 • The spouse; • a parent; • a guardian previously appointed, including during minority of the adult; • a friend, relative, or any other individual found suitable and appropriate and willing to accept the appointment; and • the county guardian.

37. Requirement of a writing nominating a guardian 29-4-3 • Must contain an express nomination . . . • must be signed or acknowledged . . .in the presence of two witnesses who sign in the individual's presence; and • may be revoked by the individual by obliteration, cancellation, or by a subsequent inconsistent writing, whether or not witnessed.

38. Petitions for Guardianship 29-4-10 • Any interested person, including the proposed ward, may file a petition • The petition shall set forth extensive information to identify • the proposed ward, relatives, potential guardians, • Facts supporting the need for a guardian; • foreseeable limitations on guardianship;   .

39. Petitions for Guardianship 29-4-10 • Evidence of a living will, durable power of attorney for health care, advance directive for health care, order relating to cardiopulmonary resuscitation, or other instrument …prepared in the event of incapacity, and, • the name and address of any fiduciary or agent named such instrument; • whether anyone has consented to serve as guardian

40. Formalities of the Petition 29-4-10 • The petition shall be sworn to by two or more petitioners or shall be supported by an affidavit based on personal knowledge of a physician, a psychologist or a licensed clinical social worker, • stating that the affiant has examined the proposed ward within 15 days prior to the filing of the petition

41. Standard for the court 29-4-10 • The affidavit must specify that the proposed ward was determined to lack sufficient capacity to make or communicate significant, responsible decisions concerning the proposed ward's health or safety.

42.   Obligations of guardian 29-4-22 • A guardian shall make decisions regarding the ward's support, care, education, health, and welfare and shall consider the expressed desires and personal values of the ward. . • Encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs.

43. Legal Standard of Guardian29-4-22 • A guardian shall at all times act as a fiduciary in the ward's best interest and exercise reasonable care, diligence, and prudence; and • must promptly disclose any conflict of interest between the guardian and the ward when it arises and seek the court's determination. 29-4-24.

44. Emergency Guardianship • Any person may file a petition for appointment of an emergency guardian, and will be required to present facts that establish an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed 29-4-14

45.   Conservator for adults 29-5-1 • The court may appoint a conservator for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her property.

46. Civil Commitment: Rights Retained 37-3-140 Civilly Committed “Patients shall retain all rights and privileges granted to other persons or citizens” Including: civil, political, personal or property rights “Not to be considered legally incompetent for any purpose”

47. Mentally retardedClients' right to voteEach client in a facility who is eligible to vote shall be given his right to vote in primary, special, and general elections and in referendums. The superintendent or regional state hospital administrator of each facility shall permit and reasonably assist clients:   (1) To obtain voter registration forms, applications for absentee ballots, and absentee ballots;   (2) To comply with other requirements which are prerequisite for voting; and   (3) To vote by absentee ballot if necessary. 37-4-104.

48.  Retention of rights and privileges by clients generally; right to due processClients shall retain all rights and privileges granted other persons or citizens. Notwithstanding any other provision of law to the contrary, no person who is receiving or has received services for mental retardation shall be deprived of any civil, political, personal, or property rights or be considered legally incompetent for any purpose without due process of law. 37-4-100. 

49. How does a finding of incompetency impact positive rights?

50.   Retained Rights of the Ward 29-4-20 To communicate freely and privately with persons other than the guardian; To bring an action relating to the guardianship, To the least restrictive form of guardianship assistance; and To be restored to capacity at the earliest possible time.