Guardianships over the mentally ill
The United States has one of the highest rates of mental illness in the world, including major depression, schizophrenia, bipolar disorder, obsessive-compulsive disorder, panic disorder, post-traumatic stress disorder and borderline personality disorder. The National Association for Mental Illness reports “without treatment the consequences of mental illness for the individual and society are staggering: unnecessary disability, unemployment, substance abuse, domestic violence, homelessness, inappropriate incarceration, suicide and wasted lives.”
Families with mentally ill children, siblings, or parents find that there is little they can do to help their mentally ill family member. There is limited help from both the Probate Code or the Mental Health Code.
The Probate Code allows for guardianship over incapacitated persons. “incapacitated person” being defined as an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs. This sounds like a mentally ill person would qualify as an incapacitated person, and they do for a short period of time. Once the guardianship is obtained, the party would regain capacity and the guardianship would terminate. If you have ever dealt with a mentally ill person, the minute they are no longer forced to take medication they usually won’t take it! Therefore, there is a gaping hole in the statute concerning mentally ill people.
The Mental Health Code does not specifically address the guardianship issue for mentally ill people. The code currently defines mental illness as an illness, disease, or condition, other than epilepsy, senility, alcoholism, or mental deficiency, that: (A) substantially impairs a person’s thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior. This statute does allows for emergency detention of those who are a threat to themselves or others, to be held in a mental health facility and treated pending a court proceeding. If the Court decides to keep the party, then they will get stabilized and eventually sent home with instructions to take their medication, which they rarely do and the process starts all over again. If the Court decides to send the party home, then they will likely stop taking their medicine and the process starts all over again.
In Texas, the mental health code has not been revised since 1985, but it is seriously needs an overhaul. Last year, the nonprofit advocacy organization, Texas Appleseed asked lawmakers to replace the existing mental health code with one that reflects contemporary mental health needs. The Appleseed report’s recommendations include eliminating provisions in the code that call for law enforcement to obtain a warrant to detain someone in a mental health crisis and adding explicit laws that allow officers to confiscate firearms from people who become dangerous as a result of their mental condition. Another recommendation calls for the adoption of a uniform one-page intake form for law enforcement officers to complete when they take someone in crisis to a mental hospital. Currently, forms across the state vary; some are many pages long and take hours to complete. Representative José Menéndez, Democrat of San Antonio, filed House Bill 245, which would allow hospitals to detain mentally ill people for up to 24 hours. This is because hospitals currently do not have legal authority to detain people who voluntarily enter their facilities in search of mental health care but then decide to leave.
While the suggested changes are a great start, they do not go far enough. We need to address the issue of how family members are supposed to help their loved one get the help they need to manage their life, stay on medication, find housing, etc. If your family is affected by these issues, please do not hesitate to contact your representative to voice your concern!