What You Need to Know About Mental Health Guardianship

To appoint a Title 14 guardian with mental health powers, the court must find that the person is incapacitated as a result of a mental disorder. A mental disorder is defined as a substantial disorder of thought, cognition, memory or emotional process. The court must also find that the person is currently in need of inpatient mental health care and treatment.

Any surrogate, even if they do not have specific authority to consent to psychiatric hospitalization, may still consent on behalf of the incapacitated person to place him or her in a psychiatric facility on an emergency basis, but must file for a mental health guardianship within 48 hours of admission unless a civil commitment proceeding is initiated or the person has a validly executed a health or mental health care power of attorney that specifically includes the authority to consent to inpatient psychiatric treatment.

• If the guardian places the ward in an inpatient psychiatric facility then he must give notice of the placement to the ward’s attorney within forty-eight (48) hours. The attorney for the Ward may request a hearing in which case the court must schedule the hearing within three days of the request.

• The attorney appointed by the court remains assigned to the case until discharged unless the court discharges him on the grounds that continued representation of the Ward is no longer necessary or desirable.

• The ward has the right to an independent psychiatric or psychological evaluation and the cost of this evaluation will be paid for by the county if the patient has insufficient funds to pay for the cost. The court may accept a report based on an evaluation conducted by the facility if the court finds the report meets the requirements of the evaluation.

• The duration of a Title 14 guardianship with mental health powers is in the discretion of the court. However, the guardian must file an evaluation report annually by a physician or psychologist who meets the requirements of the statute. The report must indicate whether the ward will likely need inpatient mental health care and treatment within the next year. If the report is not filed in court or indicates that the patient does not need inpatient mental health care treatment the guardian’s authority to consent to treatment ceases. If the report supports the continuation of the guardianship, then the guardian’s authority to consent to treatment continues. However, the court-appointed attorney can contest the continuation if he files a request for a court hearing. The hearing must be set within ten days after the report is filed.

• An alternative to mental health guardianship is involuntary court-ordered treatment under Title 36 of the Arizona Revised Statutes. The downside is that the family loses control because it is the county that brings the action to commit the person, but this type of commitment may make it easier to access public services.