Garfunkel Wild’s Madelin Zwerling answers your questions in our New York Mental Health Law and Discharge Planning Q&A series. Our Q&A will focus on the proper standards and best practices to use when responding to the challenges relating to the retention, treatment, and safe and appropriate discharge of patients in the area of mental health care. Our country is facing a mental health crisis and more than ever families need information on how best to navigate all stages of psychiatric hospitalization and treatment. It is imperative to understand the components of a safe and comprehensive discharge plan for those diagnosed with mental illness in New York. In addition, garnering information about tools that can be used such as guardianships, and how if implemented properly, they can be an effective tool when caring for someone who suffers from mental illness and cannot care for themselves. Our goal here is to provide general information in a Q&A format regarding Mental Health Law and the treatment of mental illness in New York.
What protections are available for adults who become incapacitated later in life?
By Madelin T. Zwerling on
It is possible that certain adults who have lived long, successful lives, and have always been able to make their own decisions, may become incapacitated later in life as a result of a serious injury, the onset of mental illness, dementia, or complications from a neurological or medical disease. Under the law, everyone is assumed to have the capacity to make their own decisions, but what happens when one's decision making capacity wains, placing them in danger?
The appointment of a “guardian” is an option of last resort. Other less intrusive alternatives should be explored before initiating an action for the appointment of a guardian for a person. Seeking an appointment of a guardian, while it may be protective of the individual, also serves to strip the individual of his or her decision-making rights, which is a basic constitutional right granted to each of us and one of the basic rights that our legal system was created to protect.
For example, in New York, a guardian can be appointed when an individual lacks capacity and there are no advance directives in place that appoint an agent to make healthcare decisions on the individual’s behalf. In such cases, a court will be asked to appoint a guardian when it has been proven that such an individual, legally known as the alleged incapacitated person, is incapable of caring for his/her personal needs (food, clothing, shelter, and healthcare), or property needs (financial affairs, property issues, and access to funds).
There are other laws in various states, like in New York designed to designate individuals who can make certain health care decisions on a person’s behalf when it is found a person cannot make their own decisions in a hospital setting. I will explore this in my next Q&A.
What can a loved one do if he or she has safety concerns for a family member living in New York who suffers from symptoms of mental illness and refuses to seek treatment on his or her own?
By Madelin T. Zwerling on
In New York, family members and other concerned individuals may make an application to the court for a mental health warrant under Mental Hygiene Law §9.43. A mental health warrant proceeding is a civil proceeding that involves petitioning the court to bring the individual before the court for a hearing. The petitioner is required to submit a “verified statement” explaining to the court how the individual is “mentally ill and is conducting himself or herself in a manner that would be deemed disorderly conduct and which is likely to result in serious harm to himself or herself.”
The court upon receipt of the statement will issue a civil warrant directing that the alleged mentally ill individual be brought (by law enforcement) to the court for a hearing and determination. If the court determines that the individual meets the criteria, a civil order directing the individual’s removal will be issued and he or she will be brought to a psychiatric emergency room for immediate evaluation. Upon evaluation, the hospital will determine if the individual meets the criteria for admission to the Hospital for care and treatment.
What protections are available for adults who become incapacitated later in life?
By Madelin T. Zwerling on
It is possible that certain adults who have lived long, successful lives, and have always been able to make their own decisions, may become incapacitated later in life as a result of a serious injury, the onset of mental illness, dementia, or complications from a neurological or medical disease. Under the law, everyone is assumed to have the capacity to make their own decisions, but what happens when one's decision making capacity wains, placing them in danger?
The appointment of a “guardian” is an option of last resort. Other less intrusive alternatives should be explored before initiating an action for the appointment of a guardian for a person. Seeking an appointment of a guardian, while it may be protective of the individual, also serves to strip the individual of his or her decision-making rights, which is a basic constitutional right granted to each of us and one of the basic rights that our legal system was created to protect.
For example, in New York, a guardian can be appointed when an individual lacks capacity and there are no advance directives in place that appoint an agent to make healthcare decisions on the individual’s behalf. In such cases, a court will be asked to appoint a guardian when it has been proven that such an individual, legally known as the alleged incapacitated person, is incapable of caring for his/her personal needs (food, clothing, shelter, and healthcare), or property needs (financial affairs, property issues, and access to funds).
There are other laws in various states, like in New York designed to designate individuals who can make certain health care decisions on a person’s behalf when it is found a person cannot make their own decisions in a hospital setting. I will explore this in my next Q&A.
What can a loved one do if he or she has safety concerns for a family member living in New York who suffers from symptoms of mental illness and refuses to seek treatment on his or her own?
By Madelin T. Zwerling on
In New York, family members and other concerned individuals may make an application to the court for a mental health warrant under Mental Hygiene Law §9.43. A mental health warrant proceeding is a civil proceeding that involves petitioning the court to bring the individual before the court for a hearing. The petitioner is required to submit a “verified statement” explaining to the court how the individual is “mentally ill and is conducting himself or herself in a manner that would be deemed disorderly conduct and which is likely to result in serious harm to himself or herself.”
The court upon receipt of the statement will issue a civil warrant directing that the alleged mentally ill individual be brought (by law enforcement) to the court for a hearing and determination. If the court determines that the individual meets the criteria, a civil order directing the individual’s removal will be issued and he or she will be brought to a psychiatric emergency room for immediate evaluation. Upon evaluation, the hospital will determine if the individual meets the criteria for admission to the Hospital for care and treatment.