There is nothing more difficult than watching a loved one suffer and deteriorate due to mental illness. When they become a danger to themselves or others, however, it may be time to stop watching and take some kind of action. Unfortunately, if the loved one is an adult, you can’t make them do anything they don’t want to do unless you seek help from the law. In our practice, we see people struggling with this dilemma all the time, and we help our clients understand the legal remedies that are available to them.
When You Might Need to Step in to Help a Loved One
When we think of mental incapacity, we often think of Alzheimer’s and dementia, and these are certainly common reasons for placing a loved one in a secure facility. However, mental illness and cognitive impairment can also affect young people and render them incapable of taking care of themselves, even if they can’t or won’t admit it. Some causes include:
- Head injuries
- Severe depression
- Schizophrenia
- Anxiety disorders
A person suffering from dementia, cognitive impairment, or one of these other mental illnesses may be unable to properly care for themselves and may even be a danger to themselves or others. Unfortunately, a diagnosis of one of these conditions is not enough for the law to take away their legal independence. While you might want to get them the help they need, if they don’t want help, you can’t force them without going to court.
Legal Steps You Can Take
Many of our clients mistakenly believe that if they have a Power of Attorney with their elderly parent, they have the legal right to make decisions for them, including putting them in an assisted living facility if they have dementia. However, that is not the case. In order to enact a Power of Attorney, the principle must be completely incapacitated, such as unconscious or in a coma.
Issues of dementia or mental illness are a legal gray area. Just because you think your loved one is making poor decisions, that doesn’t make them legally incompetent. If, however, your loved one has harmed himself or you believe there is a real risk of him harming himself, you could do one of two things:
- Seek legal guardianship. This involves filing an application with the court and providing evidence that the person is legally incompetent—such as a letter from a doctor or a police report of a troubling incident. The judge will then make a legal determination of competence. If the judge grants guardianship, you will have the legal power to get your loved one the help you think they need.
- Get an involuntary civil commitment. In an emergency situation, you can seek a temporary involuntary civil commitment to a behavioral unit in a hospital or other appropriate facility. This might happen if your loved one attempts suicide, becomes violent, or has a psychotic episode of some kind. With an elderly person, they might have wandered off and been picked up by the police or may have been in a situation where adult protective services were called in. These orders are generally only good for about 14 days but can help you get control of the situation while you figure out the next step.
It is never easy to get the court involved when you are trying to care for someone you love, but sometimes you don’t have a choice.
What If the Court Disagrees?
As we said earlier, mental incompetence is a legal gray area, and the court may not agree that your loved one needs to have his independence legally taken away. In a situation where you don’t have the legal authority to get help for your loved one with dementia, we advise that you do whatever you can to make your loved one safe. This might involve lying to them about their situation. We like to think of this as lying to the disease to care for the person. Tell them that a move into assisted living is just temporary. Convince them that the in-home caregiver you hired is a family member. If they have forgotten that their spouse died years ago, reassure them that he is just at the store. Say whatever you have to say to keep your loved one calm and manage the situation. If you can change the environment to match your loved one’s perception of reality, you might be able to protect them without going to court.
Get the Legal and Professional Help You Need Now
When you are struggling to care for a loved one, it is important to remember that you are not alone. There are professionals who can help you with all of these challenges, and we can put you in touch with them. When it comes to legal remedies, the Elder Law attorneys at Ross & Shoalmire, PLLC, can walk you through your options and help you protect your loved one.
