WHT Law

Can Guardians Overcome Certain Mental Health Rights?

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Can Guardians Overcome Certain Mental Health Rights?

I. DOES A GUARDIAN OF THE PERSON HAVE THE RIGHT TO VOLUNTARILY ADMIT THEIR WARD TO A MENTAL HEALTH FACILITY?

No, a guardian of the person cannot voluntarily admit their ward to a mental health facility, which includes the behavioral unit of a nursing home[1], without the consent of their ward.

In the Matter of Gardner[2] held, “a guardian appointed under the Probate Act does not have the power to admit a nonconsenting ward to a mental health facility for treatment as a voluntary patient.” In this case a guardian was appointed for an adult who was found to have a mental disability. The court ordered that the guardian admit his ward to a mental health facility and the guardian appealed. The appellate court agreed with the guardian and reversed the lower court’s decision. This case deals with the actions of a plenary guardian and seems to be the authority for guardians in general.

If a guardian wishes to admit their ward without the consent of the ward they must follow the procedure for admitting an involuntary patient.

II. CAN A PERSON WRONGFULLY ADMITTED BY THEIR GUARDIAN SIGN THEMSELVES OUT?

This issue does not have any case law on point. However, if the ward signed a waiver while in custody consenting to voluntary admission it is considered voluntary consent and they must file a 5 day notice in order to be discharged. If there was no waiver it is unclear the actions that must to taken in order for the ward to get released.

III. ASSUMING THAT A PATIENT (WARD) HAS THE RIGHT TO REFUSE TREATMENT CAN A GUARDIAN OF THE PERSON OVERRIDE THE DECSION AND CONSENT TO THE TREATMENT?

A Guardian of the Person cannot override the decision of the patient/ward in a non-emergency situation without a petition to the court. 2-107(a) reads, in part, “An adult recipient of services or the recipient’s guardian, if the recipient is under guardianship, and the recipient’s substitute decision maker, if any, must be informed of the recipient’s right to refuse medication or electroconvulsive therapy.”[3] The ward has a right to refuse medication in a non-emergency situation. However, “A guardian may be authorized to consent to the administration of psychotropic medication or electroconvulsive therapy to an objecting recipient only under the standards and procedures of subsection (a-5)” This refers to the seven requirements that need to be met in order to override the ward’s refusal. The acting physician can also petition the court for the involuntary treatment of the ward if both the ward and the guardian refuse treatment and must prove the same seven things the guardian would have to prove to overcome the lack of consent.

The following seven items must be proved, at a hearing, with clear and convincing evidence:

(A) That the recipient has a serious mental illness or developmental disability.

(B) That because of said mental illness or developmental disability, the recipient currently exhibits any one of the following:

(i) deterioration of his or her ability to function, as compared to the recipient’s ability to function prior to the current onset of symptoms of the mental illness or disability for which treatment is presently sought,

(ii) suffering, or

(iii) threatening behavior.

(C) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in item (B) of this subdivision (4) or the repeated episodic occurrence of these symptoms.

(D) That the benefits of the treatment outweigh the harm.

(E) That the recipient lacks the capacity to make a reasoned decision about the treatment.

(F) That other less restrictive services have been explored and found inappropriate.

(G) If the petition seeks authorization for testing and other procedures, that such testing and procedures are essential for the safe and effective administration of the treatment.[4]

After the petition is filed the court has seven days to hold a hearing and the parties are entitled a continuance of seven days as of right. If the seven statutory items are proven at the hearing the Ward’s lack of consent is over-ridden. If they seven items are not proven the Ward’s decision stands.

 


[1]In Re Guardianship of Muellner v. Blessing Hosp., 335 Ill.App.3d 1079 (2002).

 

[2] In The Matter of Gardner, 121 Ill.App.3d 7 (1984).

[3] 405 ILCS 5/2-107(a)

[4] 405 ILCS 5/2-107.1(4)(a)-(g).