Hickman Lowder

We meet the lifetime legal needs of children and adults with disabilities, the elderly, and their families.

Surrogate Decision Making in Mental Health Cases

On Behalf of | Aug 4, 2021 | Mental Health

In many respects, those who suffer from mental health issues fall through the cracks the most – whether that be cracks in the medical system, in public benefits, or in estate planning and guardianship law. People fall through because the system is largely designed to take care of those with physical needs or severe cognitive disorders, not those who look and feel just fine on the outside. Mental health issues are difficult because it isn’t clear when an individual is deemed incapacitated, and without that clarity, they have the right to be free from Probate Court jurisdiction from a Guardianship and can easily revoke or amend a power of attorney to remove someone that is irritating them in that moment. Unfortunately, it’s in those moments that they need surrogate decision makers the most.

I often suggest that individuals who suffer from any form of mental illness put in place powers of attorney when they are in a good season of their life, and all parties can have a thorough and blunt discussion about what may happen if there is mental health episode in the future. I ask them to name powers of attorney for healthcare and finances to make all medical and financial decisions on their behalf. Powers of Attorney are preferable to a Guardianship because they maintain individuality and freedom (unlike a guardianship) are less expensive and private. Also, the person granting the power of attorney is likely to appoint someone that they care for and trust. An individual that has named a power of attorney is free to revoke or change those documents at any time, but if there is declaration of incapacity, usually the probate court can step in and negate the attempted revoke or change to the power of attorney.

If attempts to revoke or change documents become an issue, loved ones are forced to seek a Guardianship, where the probate court will then declare the individual incompetent and appoint a Guardian to make all decisions on their behalf– including the need to be institutionalized or medicated. Generally, we try to avoid guardianships because this declaration by the court that your loved one is “incompetent” is costly, time consuming, and public, not to mention adversarial at its essence. Because of the nature of mental illness and how individuals who suffer from it can experience large differences in “good” and “bad” seasons of life, these typical estate planning tools are often inadequate – and there aren’t any real alternatives. Awareness and advocacy – the kind fostered by the National Alliance for Mental Illness (NAMI), can be the biggest help for all involved. I encourage anyone facing mental illness themselves or through a loved one to utilize NAMI’s services and experience. www.nami.org.