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Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 42332
Experience:  30 years in civil, probate, real estate, elder law
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My close friend suffers from severe mental illness and a psychiatrist

Customer Question

My close friend suffers from severe mental illness and a psychiatrist is evaluating her tomorrow for capacity. Is it too late for one of us to try to get a Power of Attorney on her?
Submitted: 4 years ago.
Category: Legal
Expert:  Ray replied 4 years ago.

Customer:

Thanks for your question and good evening.

Customer:

My sympathy here for your dilemma and situation.

Customer:

You may want to see what the psychiatrist here says tomorrow.If the person lacks capacity here to sign the POA then it may not be valid.On the other hand if the psychiatrist finds otherwise then the friend may go on and execute the POA.

Customer:

If the person lacks capacity here to execute a POA you might be looking at a guardianship.

Customer:

If the psychiatrist says there is capacity then here are free POA forms.

JACUSTOMER-4tbdrces- :

I think her primary care physician already had notes that evaluated her capacity and needed a second opinion

Customer:

Generally you would need mental capacity to execute a POA and understand what you are signing.

Customer:

If you feel the person has such capacity and the psychiatrist agrees they could sign the POA forms I gave you.Otherwise you may need a guardianship if they are incapacitated.

Customer:

On that issue here--capacity you almost have to differ to the medical experts.

JACUSTOMER-4tbdrces- :

Thus, my guess is that if they had even tried to sign something it could be questioned (e.g. sound mind). She has suffered severe mental illness for nearly 30 years and has been

Customer:

You are probably correct a guardianship might be needed.

Customer:

Here is information about guardianship.

Customer:

The guardian would then be legally appointed to act on friend's behalf.

JACUSTOMER-4tbdrces- :

what do you mean by deferring to medical experts... asking her primary care physician if he thought she already lacked capacity? I hear stories of people trying to get POAs signed when they already know the person was far gone enough mentally and they run into legal issues especially if there are notes on capacity in the records.

Customer:

Here a Guardian is generally appointed by the judge to make decisions for someone who, because of mental or physical illness or disability or alcohol or drug abuse, can't make those decisions

Customer:

If the expert here decides for instance that the person needs a mental commitment or inpatient services then a POA really isn't appropriate.

Customer:

A guardianship would be required for the ward.

Customer:

An incapacitated adult for whom a Guardian has been appointed is referred to by law as a "ward." The decisions a Guardian makes concern arrangements for the adult ward's housing, education, medical care, food, clothing, and social activities.

JACUSTOMER-4tbdrces- :

if the person is rendered incapacitated by the two physicians, who makes treatment decisions prior to guardianship being appointed? I hear guardianship can take months.

Customer:

A guardianship may take some time here.In such a case the court usually has the nearest living relative either spouse, mother, or child here make medical decisions until a guardian can be appointed.

JACUSTOMER-4tbdrces- :

how does the process work? Does the psychiatrist send paperwork to the court immediately for a court order or something? what is the process?

Customer:

Someone here would have to make application along with the medical paperwork.Usually if there is no one to serve then APS gets involved.Here is APS numbers.You may want to talk to them about guardianship help.They may be able to provide legal assistance here.

JACUSTOMER-4tbdrces- :

what is the average time for guardianship--- months? And, is it for all facets of their life (living, money, healthcare?)

Customer:

Here is more about guardianship/conservatorship..

Customer:

The court may also appoint a lawyer--ad litem for the ward--your friend here.

JACUSTOMER-4tbdrces- :

Who normally is contacted if someone is rendered incapacitated? Is it the family? And does the dr. say go and get an application? What do they do in the interim for decision making?

Customer:

That would protect their rights as well.

JACUSTOMER-4tbdrces- :

So, let's say my friend is in need of a medical treatment the next day...what do they do?

Customer:

The family here can make medical decisions in the interim.They look for the closest living relative.The hospital or treatment center will usually work with APS here and the family to get a guardian.The doctor here has the capacity to seek court ordered mental commitment if they are say a danger to themselves or others.

Customer:

Here is how commitment works.

Customer:

The Court may order that the person be committed to a suitable treatment facility. The length of the Order for Treatment will not exceed one year and the patient is entitled to a period of mandatory local treatment for at least 25 days at one of several mental health treatment agencies. Before this can happen however, the Court must find that the person, as a result of a mental disorder, meets at least one of the following four criteria:



  1. is a danger to him/herself

  2. is a danger to others

  3. is persistently or acutely disabled

  4. is gravely disabled


If the Court finds by clear and convincing evidence that the patient is suffering a mental disorder and meets one or more of the four criteria, the Court will enter an Order for Treatment. The length and terms will vary. At the expiration of the court-ordered treatment, the patient may be unconditionally released by the treating agency.

Customer:

These are the issues that her psychiatrist is looking at, and the second opinion has to concur.They would seek to have friend either voluntarily stay or seek court order .As I stated the court may appoint an ad litem for the friend.

Customer:

The court decides whether commitment is warranted and set time limits and other terms.

Customer:

I appreciate the chance to assist you tonight.Please let me know if you have more follow up.Thanks again.

Customer:



I hope that you will be so kind as to leave a positive rating. If you do have any additional questions about my answer please click the "Continue Conversation Link" so I can provide you with a fully satisfactory answer. Please be aware that any rating of 1 or 2 is reflected as a negative rating and I receive no credit for my answers.


This communication does not establish an attorney client relationship here.Information provided is not legal advice. Rather it is simply general information.

Customer:

Thanks again for letting me help you.I wish your friend the best here and hope they get well and the help they need.

Customer:

If you can leave a positive rating it is much appreciated.

JACUSTOMER-4tbdrces- :

how do they define danger to self?

Expert:  Ray replied 4 years ago.

Here the psychiatrist would have to certify that they had either attempted suicide or threatened suicide and the doctors here were convinced there is a real immediate danger of that.They take this real seriously and both doctors have to agree to the diagnosis.And this is usually considered a short term commitment until the danger has passed and they can become out patient again.

 

Arizona law for reference.

 

For both inpatient and outpatient:

ARIZ. REV. STAT. § 36-540 (A). "If the court finds by clear and convincing evidence that the proposed patient, as a result of mental disorder, is a danger to self, is a danger to others, is persistently or acutely disabled or is gravely disabled and in need of treatment, and is either unwilling or unable to accept voluntary treatment . . . ."

ARIZ. REV. STAT. § 36-501(5). "Danger to others" means that the judgment of a person who has a mental disorder is so impaired that he is unable to understand his need for treatment and as a result of his mental disorder his continued behavior can reasonably be expected, on the basis of competent medical opinion, to result in serious physical harm.

ARIZ. REV. STAT. § 36-501(6). "Danger to self" means:

(a) Behavior which, as a result of a mental disorder, constitutes a danger of inflicting serious physical harm upon oneself, including attempted suicide or the serious threat thereof, if the threat is such that, when considered in the light of its context and in light of the individual's previous acts, it is substantially supportive of an expectation that the threat will be carried out.

(b) Behavior which, as a result of a mental disorder, will, without hospitalization, result in serious physical harm or serious illness to the person, except that this definition shall not include behavior which establishes only the condition of gravely disabled.

ARIZ. REV. STAT. § 36-501(16). "Gravely disabled" means a condition evidenced by behavior in which a person, as a result of a mental disorder, is likely to come to serious physical harm or serious illness because he is unable to provide for his basic physical needs.

ARIZ. REV. STAT. § 36-501(33). "Persistently or acutely disabled" means a severe mental disorder that meets all the following criteria:

(a) If not treated has a substantial probability of causing the person to suffer or continue to suffer severe and abnormal mental, emotional or physical harm that significantly impairs judgment, reason, behavior or capacity to recognize reality.

(b) Substantially impairs the person's capacity to make an informed decision regarding treatment and this impairment causes the person to be incapable of understanding and expressing an understanding of the advantages and disadvantages of accepting treatment and understanding and expressing an understanding of the alternatives to the particular treatment offered after the advantages, disadvantages and alternatives are explained to that person.

(c) Has a reasonable prospect of being treatable by outpatient, inpatient or combined inpatient and outpatient treatment.

Expert:  Ray replied 4 years ago.
Thanks again for the follow up.Good luck here.