Current through Register Vol. 30, No. 38, September 20, 2024
A. A client shall
not be deemed incompetent to manage the client's affairs, to contract, to hold
professional, occupational or vehicle operator's licenses, to make wills, to
vote or to exercise any other civil or legal right solely by reason of
admission to a mental health agency.
B. An applicant or client is presumed to be
legally competent to conduct the client's personal and financial affairs,
unless otherwise determined by a court in a guardianship or conservatorship
proceeding.
C. Only an applicant or
client who is competent may provide informed consent, authorization, or
permission as required in this Chapter. A mental health agency shall use the
following criteria to determine if an applicant or client is competent and the
appropriateness of establishing or removing a guardianship, temporary
guardianship, conservatorship, or guardianship ad litem for the client:
1. An applicant or client shall be determined
to be in need of guardianship or conservatorship only if the applicant's or
client's ability to make important decisions concerning the applicant or client
or the applicant's or client's property is so limited that the absence of a
person with legal authority to make such decisions for the applicant or client
creates a serious risk to the applicant's or client's health, welfare or
safety.
2. Although the capability
of the applicant or client to make important decisions is the central factor in
determining the need for guardianship, the capabilities of the applicant's or
client's family, the applicant's or client's living circumstances, the
probability that available treatment will improve the applicant's or client's
ability to make decisions on the applicant's or client's behalf, and the
availability and utility of nonjudicial alternatives to guardianships such as
trusts, representative payees, citizen advocacy programs, or community support
services should also be considered.
3. If the applicant or client has been
determined to be incapable of making important decisions with regard to the
applicant's or client's personal or financial affairs, and if nonjudicial, less
restrictive alternatives such as trusts, representative payees, cosignatory
bank accounts, and citizen advocates are inadequate to protect the applicant or
client from a substantial and unreasonable risk to the applicant's or client's
health, safety, welfare, or property, the applicant's or client's nearest
living relatives shall be notified with an accompanying recommendation that a
guardian or conservator be appointed.
4. If the applicant or client is capable of
making important decisions concerning the applicant's or client's health,
welfare, and property, either independently or through other less restrictive
alternatives such as trusts, representative payees, cosignatory bank accounts,
and citizen advocates, the applicant's or client's nearest living relative
shall be notified with an accompanying recommendation that any existing
guardian or conservator be removed.
5. If the client has been determined to
require or no longer require assistance in the management of financial or
personal affairs, and the nearest living relative cannot be found or is
incapable of or not interested in caring for the client's interest, the mental
health agency shall assist in the recruitment or removal of a trustee,
representative payee, advocate, conservator, or guardian. Nothing in this
Chapter shall be construed to require the Administration or any health plan or
service provider to pay for the recruitment, appointment or removal of a
trustee, representative payee, advocate, conservator, or guardian.
6. The assessment or periodic review shall
identify the specific area or areas of the client's functioning that forms the
basis of the recommendation for the appointment or removal of a guardian or
conservator, such as an inability to respond appropriately to health problems
or consent to medical care, or an inability to manage savings or routine
expenses.
D. Mental
health agencies shall devise and implement procedures to ensure that suspected
improprieties of a guardian, conservator, trustee, representative payee, or
other fiduciary are reported to the court or other appropriate
authorities.
