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Civil Commitment (Part II)

What are the legal procedures for getting a person “committed” against his will? Get a legal expert’s take on the law of involuntary civil commitment and the related concept of guardianship.

By
Adam Freedman
December 22, 2011

Today’s topic: Civil Commitment  

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

What is Involuntary Civil Commitment?

This is the second part of a two-part article dealing with involuntary civil commitment. In the first part, I discussed what family members can do if they want to have someone committed for their own good. In this article, I address how a person can resist such committal.

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Back to the issue.

Civil Commitment – A Recap

Involuntary commitment (or “civil commitment”) is a procedure where a family member (or anyone else) can petition a court to force a person to be confined to a mental institution, or at least ordered to undergo mental health treatment. The person to be committed must pose a threat to himself or others, or must be incapable of taking care of him or herself.

Guardianship proceedings are similar, but the goal of those proceedings is to get a guardian appointed to make decisions for a person who cannot make them for him or herself. 

How to Prevent Commitment?

The best way to avoid this situation is prevention.   For example, if you just stop going on and on about how the aliens landed at Roswell and how the ray people are trying to get inside your head, that alone will go a long way toward heading off an commitment petition. But if that strategy isn’t enough, you should also explore some legal devices that might prevent involuntary commitment.

A Power of Attorney or Health Care Proxy Might Help

For example, consider getting yourself a durable power of attorney and a health care proxy now, before any conflict arises with the family. A “power of attorney” is a document that appoints a person of your choice – known as the “agent” or the “attorney-in-fact” – to make a variety of legal and property-related decisions on your behalf. The exact scope of the power depends on you – you can customize the power of attorney to suit your needs. A “durable power of attorney” is a power of attorney that continues in effect even after you are incapacitated. A health care proxy is a special type of durable power of attorney. It authorizes an agent to make health care decisions on your behalf when you are unable to make those decisions yourself.

Each state has its own laws and forms for powers of attorney; you’ll want to consult an attorney for guidance in drafting your own documents. For either a durable power of attorney, or a health care proxy, it is important to choose your agent with care, and to make sure that the agent is willing to take on the responsibility of making decisions for you if the need arises.

[[AdMiddle]Assuming you can talk someone into being your agent, your family will probably have a much harder time getting a court to approve an order of involuntary commitment or guardianship. After all, you have already given an agent authority to make decisions on your behalf in the event you are unable to make such decisions yourself. The agent will even have full power to consent to outpatient or inpatient care as necessary (which, again, is why you should be extremely careful in picking your agent).   Anyway, unless there’s a serious question that the agent you selected is himself incompetent, you will have a persuasive argument against involuntary commitment or guardianship.

Is There Evidence to Refute the Need for Commitment?

But even if you don’t have a trusted agent, hope is not lost! If you think that somebody might be planning to seek an involuntary commitment or guardianship over you, you should consult with a lawyer to begin planning your strategy.

As I mentioned in the last episode, those seeking to commit a person against his or her will must prove their case by “clear and convincing evidence.” So you’ll want to discuss with your lawyer the evidence that you can produce to refute your relatives. For example, you and your lawyer might want to consult with sympathetic family members, or with a physician, psychiatrist, or other health care provider who might be able to testify on your behalf. That way, you will have your witnesses lined up in the event somebody actually does file a petition for involuntary commitment.

Do You Qualify for Outpatient Commitment?

If your family members succeed in convincing a court that your qualify for involuntary commitment, find out whether your state allows for “outpatient commitment.” In “outpatient commitment,” the person can remain in his or her own home but is ordered to accept certain treatment at a community mental health clinic, or other community-based outpatient setting. You should discuss with your lawyer arguments you can make to convince the court to order the less-restrictive “outpatient” form of involuntary commitment.

And finally – who are these family members, and why are they plotting against you? I don’t know about you, but I would seriously consider skipping the next family potluck.

Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life. You can send questions and comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.

 

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