Thursday, 11 November 2021 15:12

Guardianships, Kendra’s Law and the Mentally Ill

By Matt Dorsey | Families Today
Guardianships, Kendra’s Law and the Mentally Ill

Article 81 of the Mental Hygiene Law outlines the legal provisions relating to guardianship of adults who are no longer able to handle their personal and/or financial affairs.  Adults suffering from chronic mental illness, such as bipolar disorder or schizophrenia, arguably cannot handle their personal or financial affairs, but they are not the most common subjects of Article 81 proceedings.

More commonly, Article 81 proceedings are brought with regard to older individuals suffering from Alzheimer’s Disease or other forms of dementia.  The proceedings are usually brought by family members, including spouses or children.

Those who suffer from mental illness may have functional deficits, which can sometimes lead to limitations presenting a danger to their welfare.  In contrast to an older individual suffering from Alzheimer’s Disease, the functional deficits of a mentally ill person can be intermittent.  As soon as the individual suffering from mental illness is getting proper treatment, i.e. consistent medication and/or therapy, the functional deficits may be manageable.

As a result, an Article 81 guardianship proceeding may be an inappropriate means of legal help for loved ones who seek assistance with a mentally ill friend or family member.  If this is the case, then what options exist under our current law to address the need?

One option to consider is Article 9.60 of the Mental Hygiene Law.  Article 9.60 is known as Kendra’s Law.  In January of 1999, Andrew Goldstein, a man with a long history of mental illness, pushed Kendra Webdale into the path of an oncoming subway train in Manhattan, causing her death.  Kendra was a 32 year-old journalist, originally from Fredonia, New York.  Prior to this tragedy, Mr. Goldstein had been in and out of mental health facilities, typically for short periods. Article 9.60 of the Mental Hygiene Law (MHL 9.60) was passed in honor of Kendra’s memory.

MHL 9.60 applies to adults who suffer from mental illness who are unlikely to survive safely in the community without supervision.  These individuals must have a history of lack of compliance with treatment for mental illness that resulted in: a) two inpatient hospitalizations in a mental health facility in the last three years, or b) one or more acts of serious violent behavior towards themselves or others in the last four years, or c) one or more threats or attempts at serious physical harm against themselves or others in the last four years.

The ultimate goal of MHL 9.60 is to bring mental health services to bear in critical cases to prevent another tragedy, like the death of Kendra Webdale.  MHL 9.60 proceedings are most commonly brought by county mental health authorities, but the statute does permit the proceeding to be brought by close family members and adults who live with the mentally ill individual.

The MHL 9.60 statute is titled “Assisted outpatient treatment,” which is often shortened to “AOT.”  As its name implies, the goal of the law is to put together a plan of outpatient treatment for the individual that can be made part of a judicial order.  For the proceeding to go forward, the petition must be accompanied by a statement by a physician that because of their examination of the individual or based on other factors, they believe the individual would benefit from AOT.

The judge hearing the case must find by “clear and convincing evidence” that AOT services are appropriate and that there is no “appropriate and feasible less restrictive alternative.”  If the judge so finds, he or she can order that the individual take appropriate medications and abide by a treatment plan designed to assist with their condition.  The treatment plan may include things like case management services, individual or group therapy, and alcohol or substance abuse treatment.  The court can order the AOT services plan to be in place for up to one year.

If the individual receiving AOT services fails to comply with the plan set forth for their treatment, MHL 9.60 provides a mechanism for him or her to be taken into custody and evaluated by appropriate medical professionals.  The law allows for the individual to be held for up to seventy-two hours, and potentially longer, based on the circumstances.

If someone who struggles with mental illness is not a good candidate for guardianship under Mental Hygiene Law Article 81, there may be tools that can be brought to bear under Mental Hygiene Law Article 9.60.  MHL 9.60 does not appoint a guardian for the individual, but rather mandates a program of assisted outpatient services to the mentally ill individual – which may help save their life, or potentially the life of another.

Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court St, Saratoga Springs.  Over his 24 years of practice, he has focused in the areas of elder law, guardianship, estate planning, and estate administration.  Mr. Dorsey can be reached at 518-584-5205, This email address is being protected from spambots. You need JavaScript enabled to view it., and www.oalaw.com

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