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Ask the Experts

Question:

How does the state assume guardianship of an individual with a physical / mental illness? Do the courts have more leverage if the individual is unable to make decisions for herself? Can a court-appointed guardian force a psych evaluation and hospitalization and for how long?

Answered by: Paul Appelbaum

State laws differ somewhat with regard to procedures for guardianship. In general, however, an interested party must file a petition with the appropriate court, often accompanied by a medical certificate, alleging that the person is incapable of making decisions regarding some or all major life areas. These can include decisions about finances, living situation, and medical care. Typically, an investigation will follow, culminating in a court hearing. Most states today require courts to tailor the powers of a guardian to the specific incapacities of the person. Many states limit the powers of a guardian to compel involuntary psychiatric treatment or hospitalization, unless specified in the appointment.