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Civil Commitments and Guardianships / Conservatorships

Commitment of Mentally Ill Individuals

In Virginia, there are statutory standards that must be satisfied before a mentally ill individual can be involuntarily hospitalized.  If you are trying to obtain treatment for a mentally ill individual, it is extremely important to be familiar with Virginia’s commitment process and criteria for involuntary hospitalization.

The first step to take in an emergency situation involving a mentally ill individual is to contact the emergency services of the city or county in which the mentally ill individual is located and ask that the individual be evaluated for possible commitment.  If the evaluator believes the individual meets the criteria for temporary detention, the evaluator will go to the magistrate to get a temporary detention order, which allows the sheriff’s department or local police force to take the mentally ill individual into custody and transport him or her to a hospital.  A family member, friend or other person familiar with the mentally ill individual can then file a petition to commit the individual.

The commitment hearing is typically held in a hospital conference room.  Despite the informal setting, it is a formal legal proceeding.  The patient has a right to counsel, and an attorney will be appointed to represent the patient at the hearing. The individual who filed the petition, the “petitioner,” must appear and state his or her evidence. A psychologist who has been appointed to evaluate the patient will also testify at the hearing.
The judge will order that the patient be hospitalized involuntarily only if the petitioner satisfies Virginia’s statutory criteria for commitment.  To satisfy the statute, the petitioner must prove that the patient has a mental illness and there is a substantial likelihood that, as a result of that mental illness, the patient will, in the near future, (1) cause serious physical harm to himself or others, or (2) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs.

A serious problem with this system is the lack of services provided to the petitioner.  In most cases, the petitioner proceeds without an attorney.   Petitioners are often unaware that they will have to litigate an actual legal proceeding to commit the mentally ill individual and that the rules of evidence and other procedural laws apply during the hearing.  Many petitioners are surprised and upset when the judge will not hear most of their testimony because it is hearsay or otherwise inadmissible.  Often the petitioner is not familiar with the statutory standards for commitment and does not provide the most relevant information.  Moreover, the petitioner faces an opposing attorney appointed by the court who will argue against the patient’s commitment. The result of this imbalance between the petitioner and the patient’s attorney is that many seriously mentally ill individuals do not receive the treatment and services they require.

For all of these reasons, petitioners should consider hiring an attorney to represent them in their efforts to commit a mentally ill individual in the hearing process.  Many petitioners do not even know that the law allows them to hire their own attorney.  Doing so can greatly “level the playing field” as the mentally ill individual is no longer the only party represented by an attorney.  This can make it more likely that the individual suffering from a mental illness will get the help he or she needs.

Guardianships and Conservatorships

When a person is too mentally ill to manage his personal or financial affairs, a family member, friend or other individual can be appointed to represent the person’s interests as a guardian (personal matters) or conservator (financial affairs).

Generally, guardianships and conservatorships are thought to be useful in cases where a person is elderly and are often considered part of an area of law known as “elder law.”  However, guardianships and conservatorships can be useful whenever an individual is suffering from a mental illness, regardless of that person’s age.  These appointments allow a specified individual to manage many aspects of an incapacitated person’s life.  A guardian is responsible for making decisions about the mentally ill person’s personal affairs, including decisions about the person’s health, safety, support, care and education.  A conservator is responsible for managing the estate and financial affairs of the mentally ill individual.  Although guardians and conservators do not have authority to hospitalize or medicate the mentally ill individual, the appointment does permit them to obtain the mentally ill individual’s private information and records.

A guardianship and conservatorship appointment is often a critical tool that can be used by a family member or friend to assist a mentally ill individual.  The Mental Health Law Group litigates guardianship and conservatorship cases involving mentally ill individuals of all ages.

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