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Legal Considerations


All individuals, those with or without any type of mental or physical illness, are advised to prepare Advance Directives for care and decision making should they become unable to make those decisions themselves.  There are many components to Advanced Directives, one of which is the appointment of a healthcare surrogate, which is a person who can make healthcare decisions, if an individual is unconscious or otherwise deemed incapable of making those decisions.  Once a physician or the courts decide that a person cannot make well-reasoned and knowledgeable decisions the healthcare surrogate named in the Advance Directive is immediately notified to make treatment decisions the person would make if competent. The surrogate can access the person’s clinical record, release information, and apply for public benefits.  There are other legal and personal ramifications to the development of effective Advance Directives and families and individuals are advised to contact their legal resource or Legal Aid Services for more information.  It is also important to know that Advance Directives and the designation of a healthcare surrogate can be rescinded at any time.  They are not permanent decisions.


If there is a concern that an individual with mental illness may become too incapacitated to make reasonable decisions concerning medical treatment, finances, and their care in general, the individual’s support person should consider requesting that the individual sign a health care surrogate form.

Guardianship may also be appropriate in some cases.  This is a court-appointed responsibility that is awarded to an individual after the person with a mental illness becomes incompetent.  The court would then assign responsibility to a family member or a professional guardian.  The courts have significant powers in the case of a person with mental illness becoming incapacitated which includes the authority to withdraw the rights to vote, marry, travel, contract, determine residence, have a driver’s license, sue and defend lawsuits, seek or retain employment, consent to medical treatment, personally apply for government benefits, make decisions about social environment or social aspects  of life, and / or manage property and income or make any gift or disposition of property.  The Guardian must file an annul accounting of finances.


An attorney can draw up a Durable Power of Attorney, which may include the right of the designated agent to handle financial matters, give medical consent, or provide other assistance in the event of incapacity.  It is important to recognize that while the agent is legally responsible for judiciously handling matters, there is no required accounting of funds or manner of care.

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