1. Debra Srebnik & Lisa Brodoff,
Implementing psychiatric advance directives: Service provider
issues and answers, J. BEHAV.
HEALTH SER. R. (
July/Septem-ber 2003), at 30: 3; 253-268.
2. A.R.S. § 36-3205(A).
3. 340 F. 3d 27 (2nd Cir. 2003).
4. SB 1169, State of Arizona,
52nd Legislature, Second
Regular Session, 2016.
5. 340 F. 3d at 27.
6. 741 P.2d 667 (Ariz. Ct.
App.1986).
7. 850 P.2d 674, 682 (Ariz. Ct.
App. 1993).
endnotes
be delineated plainly
so that the reader has
a clear understanding
of its provisions.
Although any physician, psychologist or registered nurse can
complete the court-required Medical Professional’s Report for guardianship, it is often best to engage mental health professionals in the community who regularly perform
evaluations in this specific area. Those attorneys who specialize in MHG and MHPOA
matters are generally aware of the mental
health experts in your area to contact. Judges
and fiduciaries also can be resources in identifying both legal and mental health experts
in this field.
As it cannot be predicted when the use of
a MHG/MHPOA is necessary, the guardian/agent should be directed to keep ( 1) an
easily accessible paper copy of the MHPOA
or the Letters of Guardianship, and ( 2) an
electronic copy that can be emailed to providers who may need it.
With respect to the mental health expert’s opinion, it is only as good as the information gathered. In order to provide a
solid opinion to the court on the matter of
MHG or MHPOA, collateral information
can be quite important. The Medical Professional’s Report must address the potential ward’s current and past psychiatric
treatment history as well as current medication regimen, both medical and psychiatric.
For obvious reasons, the potential ward
may not be able to provide a reliable history
so obtaining medical records is important.
Obtaining information about the potential ward’s financial situation, daily functioning, and living situation is also necessary. A
“house call” can be very enlightening as a
barometer of the potential ward’s overall
functioning and may be far more valuable
than an office visit. Identifying and interviewing family, friends and caregivers is also
crucial, not only to obtain another view of
the potential ward, but also to ferret out any
potential conflicts of interest or undue influences.
Although instituting mental health powers does not require a report to the court or
evidentiary process, the background investigation should be nearly as detailed. It is very
important to establish that the principal is
fully informed and competent to execute
such a document. Gathering information
about the principal’s psychiatric treatment
history, trajectory of the illness, and long-term functioning is necessary to determine
if the principal’s wishes are appropriately
represented, feasible, and relevant. Ensuring
that the designated agent has the principal’s
best interests in mind is also critical. It is also
useful to engage the current treating provider in the process.
Patience and flexibility are the keys to
success when working in this arena. The potential ward may not be overly cooperative
with the process, as they may not want or
think they need any oversight. He or she
may be quite impaired as a result of their
illness and may also be unable to actively
and meaningfully engage in the process. He
or she may make unusual, unrealistic, or inappropriate demands on you and your time.
Needless to say, all parties involved will have
many questions about the process as it can
be so cumbersome and confusing. You will
need to be available to your client(s) to
answer questions and “hold their hand”
through the process. The potential ward
may need extra assistance to keep and make
appointments. At times you may take on the
role of social worker rather than that of a
lawyer. It may be extremely helpful to have
an assistant who is knowledgeable about the
process who can act as your client guide and
support.
Arizona Revised Statutes 14 and 36 have
previously been mentioned and are the
mainstay of the state’s guardianship laws.
Other than the Hargrave5 decision, local
case law of interest is Rasmussen by Mitchell
v. Fleming, 6 which addresses the issues of
what is in the best interest of the patient
standard. In that case, a patient in a vegeta-
tive state was assigned a guardian, who insti-
tuted a “Do Not Resuscitate” order. The
guardian ad litem objected to this order be-
cause some staff and a family friend believed
the ward had some cognitive functioning.
The court ruled that the guardian could ex-
ercise the right to refuse treatment using the
“substituted judgment” model of what the
ward would have wanted if the ward was
able to communicate her wishes. Surrogate
decisions for substituted judgment can be
found in Ruvalcaba v. Ruvalcaba, 7 where
the appeals court overturned the lower
court’s decision to disallow the guardian of
an incapacitated ward to file for dissolution
of the ward’s marriage, holding that the
guardianship powers encompassed such de-
cisions.
Conclusion
The education of guardians, agents, service
providers, first responders, and lawyers is
critical to the process of improving access to
and use of MHG and MHPOA in Arizona.
In the age of modern technology, it is possible to create a “one-stop-shopping” website
where potential guardians may obtain information and education about MHG and
MHPOA processes. This website could provide downloadable self-help packets as well
as links to instruction manuals, tutorials, and
Frequently Asked Questions for each type
of user.
If treatment facilities and providers
could access information about the provisions and powers of MHG and MHPOA
and guidance about how to approach situations when a patient presents with MHG or
MHPOA, it would eliminate many of the
barriers identified by Arizona stakeholders
to assisting individuals with mental illness in
receiving timely intervention. The authors
of this article are willing to present information about this topic to local advocacy
groups, mental health providers, and legal
providers. It is important that the faculty of
local medical training programs, both medical and psychiatric, ensure that the doctors
of the future are fully informed about these
legal processes.
