How Guardianship & Conservatorship can be Implemented for Mental Health

On this episode of the Mind Itself, John Whitbeck is joined by three of the top attorneys that deal with guardianship and conservatorship in Virginia, D.C., and Maryland. Jouya Rastegar is a Virginia lawyer practicing in mental health law. David Mendes is an experienced attorney who practices guardianship and elder law in D.C. Richard Tappan is a Maryland attorney who deals with guardianship and conservatorship. During this podcast, they discuss the differences between the laws when it comes to guardianship and conservatorship throughout the three states, while breaking it down and discussing various situations in which it would apply.  

What are Guardianship and Conservatorship  

Guardianship and conservatorship have been the main avenue in getting assistant and helping individuals dealing with mental law. It’s an imperfect solution, but it’s evolving and developing with the assistance of lawmakers, lawyers, and attorneys.  

Guardianship allows the rights of an incapacitated person, whether it be mental illness or disability, to be given over to a guardian who is capable of making decisions for that person’s best interest. A conservatorship allows a person to be in charge of an individual’s finances when that individual can’t make decisions about financial affairs. These guardians and people that make decisions about medical issues, where they live, treatment, etc. to ultimately help the mentally ill or disabled person   

Jouya, David, and Rich talk about the different processes in the court to get guardianship or conservatorship. It’s a difficult time, as sometimes the sick individual doesn’t want help. Sometimes, they can’t acknowledge that they need help. It can be intimidating, because it also takes away the rights that the individual has, and they might not want to deal with a guardian or conservator to manage their life. The court decides whether the individual needs that assistance or not.  

If determined that the sick individual needs that help, then it becomes very difficult to get rights back. A physician needs to confirm that the individual is in enough capacity to make decisions, but hard because the trial decision was based on clear and convincing evidence, and sometimes it’s hard to dispute that.  

Providing Help 

Mental health requires a special approach, and it’s hard to determine how sick an individual is. But this is put in place to better lives overall, to implement stabilization, benefits, and protection. On the other hand, a guardian can’t forcibly make individuals take medicine or hospitalize them. The point is to use the least restrictive measurements as possible. Trying to work and agree on a treatment for the individual is the main goal of the guardian. The goal is to have the best relationship possible. 

In different states, there are other ways of intervention during a crisis. Civil commitment processes may be put in place if in the best interest of an individual is in a hospital.  

Power of Attorney 

Powers of attorneys are useful until they aren’t. A medical power of attorney allows people to make specific decisions for a sick individual, but that individual wants that assistance. They also have the power to revoke the power of attorney, so they can refuse the help at any time.   

Even if an individual has the power of attorney, it’s hard for clients to do things. Especially dealing with the financial powers of attorneys. It’s useful, but it’s always better to have guardianship and conservatorship in place instead because the individual can revoke it at any time.  

Many people think that guardianships and conservatorships are tools for the elderly and often forget that it can help younger people with mental illness or disabilities. It’s meant to be a lifesaving tool, and when correctly used, can save the lives of multiple people.