It seems obvious that a person who has a severe mental illness, such as chronic schizophrenia, would be the exact type of person for whom a guardianship would be appropriate. The Texas Estates Code seems to support this position. To create a guardianship, the person must be “incapacitated” which the statute defines for an adult as:
“Someone, because of the physical or mental condition, is substantially unable to:
- provide food, clothing or shelter for himself or herself;
- care for the person’s own physical health; or
- manage the person’s own financial affairs.”
Tex. Estates Code §1002.017.
Why do many courts, then, resist creating a guardianship for someone whose “mental condition” is the result of mental illness? The courts have no difficulty finding the person is incapacitated and needs a guardian when the “mental condition” is Alzheimer’s or other dementia, such as resulting from a stroke. It is generally the interplay of the Mental Health Court and Probate Courts that, in my opinion, have led many Probate Judges to misinterpret the Estates Code and refuse to create guardianships for mentally ill persons.
A guardian could do many things to help a mentally ill person, but that help cannot be to place them in an in-patient psychiatric facility. There is only one vehicle to do that in Texas and that is through the mental health warrant process. This occurs when family member, police or other interested person, swears an affidavit that the mentally ill person is an immediate threat to themselves or others. If the affidavit is supportable, the Mental Health Judge will issue a mental health warrant authorizing law enforcement to detain the person, hold them for 72 hours for psychiatric evaluation, and subsequently order their commitment to a mental health facility for treatment. Almost always, the treatment stabilizes the individual and they are subsequently discharged. Unfortunately, they usually are not compliant with medication and therefore relapse, so the mental warrant process becomes an endless cycle.
Many Probate Courts seem to think the mental health warrant process is the only tool available for mental ill persons. Again, given the limitations that a guardian cannot commit someone to a mental health facility, I think the statute clearly authorizes the use of guardianship to assist in the care and management of a mentally ill person because they are in fact “incapacitated”. My opinion, however, does not carry the force of law and most courts in the DFW Metroplex are hostile to the creation of guardianships for mentally ill persons. The Judges’ opinions concerning these matters are not without subject to change, and it is a situation we continuously monitor. Unfortunately, the current weight of opinion among the probate judiciary is to not grant guardianships in such circumstances. Accordingly, with narrow exceptions, we decline representation in these cases because to do otherwise would be to take potential clients’ money without any hope of success.
I share this information because it pains me to have these discussions with potential clients because the answers I have to give seem uncaring. I truly understand that dealing with a person with mental illness is stressful, difficult, and mentally taxing all by itself. I have strong sympathy for the mentally ill and those who care for them. I wish the law provided more tools for family and friends to care for their loved ones. I can only exercise the tools of the lawyers that are given to me and that are granted. I hope the law and the court’s view of the law changes. I have hoped that for a long time.
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.
