By Sgt. Rich Will.  Sgt. Will has been with the Overland Police Department for 15 years. He is a two-time recipient of the John J. McAtee award, a CIT officer since November 2004, and is currently assigned as the supervisor of the midnight shift.

Sorry there’s nothing we can do for you…But there is something you can do.

How many times have we been forced to use the statement above?  I wish I had a dollar for every time I said that to a concerned family member of a person suffering from a mental or physical disorder.  Many times we are called to a scene because the family just doesn’t know what else to do, and we stand there wishing we had the “magic words” to say that would make the consumer act right.  Recently, I found myself in the role of concerned family member, and this article is about what I found the family can do to protect and care for their loved one. 

My family, like so many, has been touched by mental illness.  I have known for years that my paternal aunt suffered from some form of mental illness, but like many families, we all chose to ignore it.  Like some mental illnesses, the illness finally reached the stage where it could no longer be ignored.  My aunt began suffering from the delusion, backed by auditory hallucinations, that she had won a large sum of money in a sweepstakes, and subsequently began writing personal checks in accordance with her new found wealth.  It was then she began to put herself in jeopardy of financial ruin and arrest for passing bad checks.   

My father sought my help because of my CIT training through the police department, but with no immediate threat to herself or someone else I was initially not much help.  It was then that I decided to reach out to the Department of Social Services, specifically the Division of Aging.  I was very fortunate to speak with Larry Gibbs.  Larry explained to me that there was indeed something that the family could do to solve the problem. 

What is it? The process is called Guardianship and Conservatorship, and it is a real answer for families like mine.  Guardianship is a legal process of determining a person’s capacity to make decisions regarding personal affairs.  Conservatorship is similar to Guardianship, but deals with financial matters exclusively.  Guardianship and Conservatorship are two separate processes, and the court decides the issues separately, but many times both issues are heard by the court in the same hearing. 

The process of Guardianship has its roots in Missouri law dating back to the early 1820’s.  Prior to 1983, Guardianship was an all-encompassing decision for people like my aunt found to be incapable of making decisions.  In 1983, however, the Guardianship law was revised and now recognizes different degrees of incapacitation or disability giving rise to partial Guardianship and Conservatorship.  The new law also took into account the increased mobility of modern times and allows for out of state residents to serve as a guardian and conservator. 

The current Guardianship law remains, however, a process by which the state protects those who are mentally ill, mentally retarded, physically disabled or elderly.  The law, in the current form, contains safeguards and reporting provisions to prevent abuse which will be discussed later in this article.   

Guardianship is strictly designed to protect “incapacitated persons.”  An incapacitated person is one who is unable to “by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person is unable to provide themselves with food, clothing, shelter, safety, or other care that would prevent physical injury, illness, or disease from taking place.”  Conservatorship deals with what it refers to as disabled persons.  The definition of “disabled person” is similar to that of incapacitated persons except that it pertains directly to financial matters.  The law distinguishes the two conditions and provides remedies for each separately. 

How is it done? The filing process for both is accomplished through the probate court.  The process may be initiated by “any interested person.”   The court with jurisdiction is defined first by the county in which the respondent “owns property or resides.”  Understanding that not all respondents will own property or have established a primary residence, the law further provides that the court of jurisdiction is one in which the consumer “may be found” and is available for service.    There is a filing fee for this process, but the law provides that “the court must accept and act upon the petition as to an indigent person without requiring a filing fee.”  The costs of the filing and the proceedings will be set after the court rules on the petition.   

In my case, my family could afford an attorney.  An attorney at this stage of the complaint is not required, but is recommended because of the costs associated with this action.  Costs in cases such as these can grow during the course of the action, and the petition to the court should clearly state the degree of incapacitation or disability before such an action is started.  The professional advice and counsel of an attorney at this stage can mean the difference between a successful conclusion and more financial debt for the petitioner.   

What does it cost? The cost of Guardianship and Conservatorship can be expensive.  The reason for such costs is simple.  In such an action, the petitioner bears the burden of proof, and the petitioner seeks to remove from the respondent many rights which include such basic rights as the right to vote and enter into contracts.  The courts in these cases will require “clear and convincing evidence” to find for the petitioner.   If the court does not find completely or partially for the petitioner, the cost of the proceedings can be placed upon the petitioner.  The costs that can be born by the petitioner in such a suit can include not only the court cost, but the costs associated with medical and psychological evaluations needed for the court and the cost of the respondent’s attorney.  In addition to these costs, the petitioner in a Conservatorship action is required to secure a bond equal to the sum total of the respondent’s assets which is set by the court. 

How long does it take? I didn’t mean to scare you, so please read on.  Once a petition has been filed and the court finds grounds for such action, the probate court is required to act promptly.  “Prompt” means as soon as reasonably possible; as a practical matter as soon as 7 to 10 days.  In that Guardianship is a legal process, several issues must be satisfied prior to the hearing date.  Included amongst those issues is the respondent must be served with notice of the hearing, and an attorney to represent the respondent must be appointed. This attorney is required to visit the respondent at least once prior to the hearing, and any court ordered examinations must take place.   

As a side note, if the court determines there is partial or complete incapacitation the court may order any mental health or health care professional, whether court appointed or not, to be compelled to testify at the hearing and release information that would normally be considered confidential or subject to doctor/patient privilege. 

How does it work? The hearing itself is governed by many procedural rules found in civil courts.  The respondent has the right to an attorney, to have a jury trial, to present evidence on his/her behalf, to cross examine witnesses, to remain silent, to have an open or closed hearing conducted in accordance with the rules of evidence in civil proceedings, and finally, the right to be present at the hearing. 

Following the hearing the court will then decide if the respondent is incapacitated and/or disabled and shall issue a finding that includes the following: 

• First, the court shall state the extent of the respondent’s incapacity and/or disability.  

• Second, the court shall state whether it believes placement for the respondent is needed, and if so, the degree of supervision that is required using the least restrictive environment doctrine. 

• In cases involving Conservatorship, the court will state whether there is need of supervision of the respondent’s financial resources and the extent of supervision needed.

One key factor in the outcome of Guardianship/Conservatorship cases is the concept of least restrictive environment doctrine.  Basically, this is how the court defines the extent of the incapacitation/disability and balances the need of the respondent to be protected with the respondent’s personal liberty.  The court may find that a guardian/conservator ad litem is called for.  Guardian/Conservator ad litem is the same as a guardian or conservator but that person serves for 30-day periods that can be renewed for up to 6 months.  The court may also find that a partial guardian/conservator is needed.  The powers exercised by the partial guardians/conservators are defined specifically by the court in its final order to meet the needs of the respondent.  Finally, the court may order full Guardianship/Conservatorship of the respondent, who is now referred to as a ward by the court.  Again, the powers of the guardian/conservator will be defined by the court in its final order.   

As with all court judgments, there can be appeals to the Guardianship/Conservatorship order.  In these cases appeals to the order can be made by the petitioner, the ward, relatives of the ward, any “reputable citizen” of the county in which the hearing took place, or any attorney representing the aforementioned persons.  Appeals to the order do not necessarily stay the decision by the court that the ward is incapacitated and/or disabled, but the court must stay the order on appeal unless the ward is determined to be a danger to himself/herself or others because of his/her mental condition. 

What happens next? Absent an appeal of the order, guardians have the following duties:  The guardian must

• assure that the ward reside in the best and least restrictive setting reasonably possible. 
• assure the ward receives medical care and other services. 
• promote and protect the care, comfort, safety, health, and welfare of the ward. 
• provide required consents on behalf of the ward. 
• finally, exercise all powers and discharge all duties necessary or proper to insure all of the above functions are carried out.

An important note with regard to the duties of guardians is that they are not obligated by appointment as guardian to use their own financial resources for the support of the ward.   The guardian is simply required to obtain for the ward all services that s/he is entitled to.  If the estate of the ward or the public benefits due the ward are not sufficient to provide for the ward’s needs, the guardian may apply to the county commission for an appropriation of county funds for that purpose. [475.370 RsMo] 

Even with the best of care, sometimes the progression of a mental illness may require the placement of the ward in a mental health facility.  With regard to Guardianship, there exist restrictions on the guardian placing a ward in a mental health facility.  The Guardianship laws hold that no guardian may admit the ward to any mental health or mental retardation facility for more than 30 days without securing a court order to do so.[475.120.5 RsMo]    It is important to note with this restriction that the law stipulates more than 30 days.   Once Guardianship of a loved one has been obtained, the obstacles to obtaining good mental health care for the ward have been greatly reduced.  No longer will the family or other person have to stipulate a danger to themselves or others for admission to a mental health facility as they would in emergency case, a CIT case.  Furthermore, all that is required after the initial admission of the ward is a request by the guardian to the court containing a statement from the mental health care giver of the need for admission, the course of treatment, the diagnosis, and probable duration of the admission.  And, after all, is not good mental health care for these individuals what we were after in the first place? 

Paperwork.  As in life, with every power that we obtain, we are awarded a responsibility.  Guardians are no different.   Because of the restriction on personal liberties that the process of Guardianship imposes, guardians are required to make annual reports to the probate court with regard to their wards.   The purpose of this report, as previously stated, is to provide a safeguard from abuse.  It is an unfortunate reality of our society that between the years of 1986 and 1996 elder abuse increased 150 percent, with only a 10 percent increase in the older population according to the National Elder Abuse Incidence Study (1998).  The increase of abuse is further staggering when one considers that only one in four cases of elder abuse are reported to authorities.   Given the opportunity for abuse, the court requires that every guardian/conservator make an annual report to the court.  For guardians, this report must contain the following information: 

• The present address of the ward/guardian,
• the number of/nature of contacts between the ward and the guardian,
• any plans for institutionalized wards for treatment,
• date the ward was last seen by a physician,
• any major changes in the ward’s physical/mental condition,
• the guardian’s opinion as to the need for increased or decreased powers,
• and the guardian’s opinion as to the adequacy of care the ward is receiving. 

The process of Guardianship/Conservatorship is long and it’s legal, and it is in some cases restrictive.  I have found that in the case of my family, however, it was entirely necessary.  I write this article absent a decision by the court with regard to my aunt, but I’m assured by the information that I have studied in preparation for this article that the action is entirely justified and will be granted.  It is my hope that other families can benefit by my research into this matter, and that we can recite the second line of this article to family members of those suffering from a mental disorder with confidence knowing that there is something that they can do for their loved one. 

There are alternatives to this process.  I hope to explore the “Adult Protective Services Act” in my next submission to this magazine, and explain interim measures that families can take short of Guardianship.   Even if the final goal with a loved one is Guardianship, there are steps that you can take before that process is complete to ensure that your loved one is protected.  The preceding article is not intended to be the “end all” or “be all” with regard to Guardianship or Conservatorship.  It is simply designed to be a reference for officers dealing with Guardianship/Conservatorship issues on calls as a reference as to what the family can do for itself with regard to the care of a loved one suffering from a mental/physical disorder.   It is my sincere hope that officers dealing with these issues can use this article to guide families toward a more productive conclusion.  Protect and serve is the motto of our profession; let's provide the information instrumental in helping other families in protecting their loved ones.

October, 2003

• Suicide By Cop
• Street Tips: Medical Conditions Masked as Mental Conditions
• Myths of Suicide
• Law in Action: Jail Diversion Program
• In the Limelight: Officer Jeremy Cantrell
• Do You Know? What is Mental Illness?
• Moving On: Farewell to Two Friends
• At Your Service: Community Resources
• Open Mind: Being a Victim of Crime
• Mental Health Directory

July 2003

• John J. McAtee Award Winners
• Street Tips: Connecting Gambling and Crime
• Street Report: Eating a Gun
• Law in Action: St. Louis Area CIT Update
• In the Limelight: Officer Felecia Brown
• Q&A: Involuntary Commitment Change
• Continuing Education Opportunities
• Roll Call Video Ready for Roll-Out
• Open Mind: Being a Victim of Crime
• Mental Health Directory
• Resources for Problem Gamblers

April 2003

• John J. McAtee Award Nominations
• Street Tips: Take Care When Dealing with Mentally Ill Suspects
• At Your Service: Family Readiness Program for Deployed Officers
• Q&A: Effects of Military Deployment
• Current Issues: State Budget Cuts
• St. Louis Area CIT Program
• Street Report: Military Call-ups Strain Law Enforcement Agencies
• Children of Deployed Military Personnel
• Open Mind: Living in Unsettling Times
• Mental Health Directory

January 2003

• Cover Story: Starting New Careers After 50
• Street Tips: Humor in Uniform
• At Your Service: Metropolitan Psychiatric Center
• Q&A: Life After Law Enforcement?
• Current Issues: Police Suicide
• Retirement--It Can Be an Action Word
• Street Report: Career Transitions
• In the Limelight: Crestwood Police Officers
• Mental Health Directory
• Open Mind: Suicide and Success

• Cover Story: Less-Lethal Munitions
• Street Tips: Less Lethal Force
• At Your Service: Behavioral Health Response
• Q&A: Involuntary Commitment
• Current Issues: Budget Cuts Affect Law Enforcement
• CEU Classes for Officers
• Mental Health and Money: Stock Market Induced Anxiety
• In the Limelight: St. Charles County Sheriff's Department
• Mental Health Directory
• Open Mind: PET and MRI Scans

McAtee Award recipients

Stress Relief (Sgt. Dan Fitzgerald)

Management Looks at Officer Burnout (Lt. Mike Laws)

A Look at Mental Health Courts (Officer Jim Rudden)

Signs of Officer Burnout

In the Limelight: Sgt. Paul Ferber

At Your Service: Self-Help Groups as a Resource

Crisis Intervention Training (CIT)

Q&A: What is Schizophrenia

In Their Own Words

January 2001

April 2001

July 2001

October 2001

Who Can You Trust?

Staying in the Cooktent

Top 10 Myths & Facts about Mental Illness

The Terrorist: Sane or Mentally Ill?

At Your Service: American Red Cross

Department of Mental Health Administrative Agents