Mentally-ill son soon to turn 18; seeking advice about guardianship
June 13, 2013 10:18 AM   Subscribe

My son is 17 years old, turning 18 at the end of July. In mid-May, he was hospitalized for two weeks when he became floridly psychotic -- his first episode. As he recovers post-hospitalization, I want to get some sort of guardianship in place so that I can step in and manage his healthcare and finances if he's unable to. I don't know, however, what kinds of options there are; I've heard the terms "healthcare proxy" and "power of attorney", but I haven't wrapped my brain around what those encompass, or what it would entail to apply for these things. One person says I need a good lawyer; another says I just need to get a boilerplate form from Staples and get it notarized. I'm in Massachusetts -- Boston/Cambridge/MetroWest. Hope me please!

My son, upon release, was given a sort of placeholder diagnosis: "schizoaffective disorder", manifesting as bipolar on the manic side of the bipolar scale. The meds he's been on for the past month (risperidone & divalproex) are slowly gaining traction. I have plenty of support structures in place to help transition him into his new life: he has a therapist and a psychiatrist; he's enrolled in a day program for the next couple of weeks; I'm also going to be assigned an Intensive Care Coordinator (ICC) in a few days to help me pull together a team of people that can provide him with other services, connect him back with the community-at-large, help me navigate the insurance labyrinth, provide me with a "family mentor" type (a parent who has had a kid go through the same stuff as I am), and so on. These are good, helpful things.

Special snowflake issues:

• Single parent. I gained physical custody of him about ten months ago, and I share legal custody with his mother, who lives 66 miles away. In a nutshell, the mother's not very reliable, and has mental health issues of her own, but is on board with the kid's treatments and has been working with and not against the flow. She is aware that I intend to file for sole guardianship, and in all probability won't block me from doing so. We are civil to one another, but I am trying to maintain firm social boundaries, as interacting with her stresses me out.

• I'm currently renewing his MassHealth benefits under his own name -- right now he's covered in conjunction with his mom, who is on MassHealth for her various illnesses; MassHealth sent him a renewal notice independently of her; I am handling the renewal. He's also covered under my Blue Cross & Blue Shield insurance, so MassHealth is/will be the safety net for anything my BCBS won't cover. (MassHealth, via Network Health, is what's responsible for covering the day program, the ICC, the hospitalization, the psychiatrist & therapist, etc.)

I know I have a lot to deal with, but I'm handling it well, psychologically. My workplace is understanding of my needs, and luckily this all is happening during a slow time of the year. (I work in academia; summertime is when everyone flees the campus.) My son's school is giving him plenty of room to recover, and has eliminated any deadlines by which he'll need to submit work in order to graduate. My friends and family have been supportive and encouraging, and I have found and attended a NAMI-affiliated support group so that I can gain perspective and insight.

But as far as the guardianship, since I have about six weeks before he turns eighteen, I want to get this squared away toot sweet. How important is this to take care of, and why? How can I frame this to my son so that he understands the need for me to file for guardianship, and gives me his consent? (Is this necessary, given his day-to-day status of being connected to reality?) Can the ICC help me with this? Can something like this be fast-tracked? Do I need a lawyer? Can you recommend one to me? (If you would like to recommend a lawyer, or convey other information to me off-thread, one of the mods said they'd relay it to me.) Thanks in advance for your help!
posted by anonymous to Law & Government (25 answers total) 4 users marked this as a favorite
This is one of the situations where you have to work with a competent lawyer. You can search here at the MA Board of Bar Overseers.

Anecdotally, I worked in a residential mental health program for young women whose parents did not do this because they didn't know exactly what to do and when the women turned 18 the girls signed themselves out, and it never had a happy ending. Never.
posted by kinetic at 10:25 AM on June 13, 2013 [8 favorites]

Lawyer, lawyer, lawyer. NOW.

As far as framing it to him, I would consult with a social worker, especially one that is familiar with his case. You need to tread very carefully.
posted by Leezie at 10:26 AM on June 13, 2013 [5 favorites]

One person says I need a good lawyer; another says I just need to get a boilerplate form from Staples and get it notarized.

Do you really think you can wrest legal control of an adult's life away from them with a boilerplate form from Staples? No, sorry, you need a lawyer.
posted by showbiz_liz at 10:27 AM on June 13, 2013 [7 favorites]

Mod note: Constructive helpful answers folks.
posted by jessamyn (staff) at 10:29 AM on June 13, 2013

If he was hospitalized you should have access to a social worker who at least glanced at his file at the time. He or she might have visited you to introduce themselves and give you a card, or you might have no idea who this person is. But the hospital should be able to put you in touch with a social worker who can provide support and either help with this issue or confirm that you need a lawyer and possibly help you find one.

Good luck.
posted by telegraph at 10:32 AM on June 13, 2013 [3 favorites]

Get a lawyer, not only to get things done properly, as discussed above, but to keep everyone involved from going under due to stress.

With no lawyer, you have 6 weeks to understand a very complex area of the law, and then worry whether you've done things right, with no chances for a re-do and little chance of success on the first try. With a good lawyer, you have six weeks in which you can calmly follow the directions of a knowledgeable professional, assemble the needed documents (or whatever) according to her/his advice, and concentrate on supporting your son. Clear choice.
posted by Wylla at 10:32 AM on June 13, 2013 [2 favorites]

Mod note: From the OP:
Okay I hear you loud and clear on the "Lawyer?" question. If people have advice on my other questions, I'd really appreciate it. Thank you.
posted by jessamyn (staff) at 10:40 AM on June 13, 2013 [1 favorite]

IAAL, IANYL, TINLA, the law varies by jurisdiction and I don't know the law in yours. But here's some practical stuff:

First, you can be granted guardianship over an adult. The process is likely to be different (and will have different requirements) than assuming guardianship over a minor, but it can be done. It may even be the case in your jurisdiction (I don't know) that guardianship over a minor has to be converted to guardianship over an adult once the minor turns 18, in which case there's no point to rushing through this process. Short story: this six-week deadline may not be much of a deadline in the end. It is FAR more important for you to get competent help from a good lawyer than to try and rush through this in six weeks only to find that everything has changed and you have to do it all over again because your son is now an adult.

Second, here's the Massachusetts Court System page with information and resources on guardianships. That page has a list of links, including one to an organization that provides assistance to people seeking guardianship over minors or adults. It looks like it, like most such organizations, offers assistance to low-income people, but even if you don't qualify for their services, I bet they'd be able to point you in the direction of a good (and possibly reasonably-priced) lawyer, or another organization that can help you.

Finally, you will not be alone in this process, nor is the process guaranteed to be an adverse/negative one. Your son will likely be appointed a guardian ad litem, who will advocate for him before the court, so his interests will be represented, but the GAL will also likely be a very good resource for YOU in discussing your options going forward (e.g., temporary guardianship, permanent guardianship). I bet the GAL (or the GAL's office) will also have a good list of resources for guardians, like social workers, therapy, day programs, etc. It sounds like you already know about a lot of those resources. My point is, though, that while this may be an unfortunate necessity, it is not guaranteed to be a negative one. The best guardianship proceedings are ones where all of the parties are really committed to the same goal, which is seeing the incapacitated person taken care of.
posted by devinemissk at 10:48 AM on June 13, 2013 [6 favorites]

I think the answers to all of your questions are:

You need to build a solid relationship with a trusted set of qualified professionals who can have the details of your particular situation. A team dedicated as much to helping you as to helping your son.

This includes a therapist for you, even though you're handling this well right now, a third party can really help when you have doubts or other concerns. Better to build that relationship now, while you have the emotional and physical energy to meet people and choose. Finding the right therapist straight out of the gate is not guaranteed, so you may need to test drive a few. Some have evening and/or weekend hours available. These kinds of events bring up all kinds of emotions for parents. Some of them will be surprising to you. Better to have a trusted person to help you navigate them, and help you learn new skills to set and maintain boundaries, not just wiht your son, but with his mother, nosy ass neighbors in town who want to meddle, other professionals, work life, everything, really.

You've probably been told this already, but one of the big risks with mental illness is that the patient stops taking medication once they feel "normal" again. This happens for a lot of different reasons. Please become familiar with them now.
posted by bilabial at 10:51 AM on June 13, 2013 [3 favorites]

Especially if you're in Cambridge, the folks at the Cambridge Health Alliance can be helpful to you. There are definitely social workers, and I've had pretty good luck with their mental health folks. As with all health care situations you'll still have to advocate for yourself and your son, but they may be a good place to start looking for those qualified professionals.
posted by ldthomps at 10:55 AM on June 13, 2013

Find out what resources are available to you in your community, as others have said above. If your son is eligible, check into SSI Disability. (I have recommended that a lot lately.) Once he's been on for two years, he's enrolled in Medicaid, which can be a godsend down the line.

You do need a good lawyer, and I'm sure that your local mental heath agency can recommend someone affordable and who is well-versed in the ins and outs of guardianship.

Yes, get someone you can discuss this with. A support-group for care-givers can help you connect with others in the same boat and provide you with guidence from folks who've walk the road you're walking already.
posted by Ruthless Bunny at 11:15 AM on June 13, 2013

I know a lawyer I would recommend in your area who specializes in this kind of stuff, she has been at it for quite a while, is the parent of a special needs kid who is now over 40. Give us a throwaway email or send me a memail.
posted by mareli at 11:41 AM on June 13, 2013 [2 favorites]

My youngest brother has Down's Syndrome, and my parents have legal guardianship of him. They are not in MA, and he can never live on his own, so the process will be different for you, but perhaps this recounting will be of help.

- My parents worked with a lawyer. He prepared the paperwork and did most of the presentation in court (you will need to go to court for guardianship - other things such as healthcare proxies may or may not require a court visit - your lawyer can advise you)
- Prior to the court date, each adult sibling had to sign a waiver to say we did not contest our parents' application for guardianship. This went into the packet of paperwork presented to the court.
- My brother had to have a physical to check his health and check for abuse.
- My brother's social worker interviewed him by himself to make sure he was not being abused and was happy and comfortable in my parents' home. He's never been upset by this, so she must do a decent job of taking his mental maturity into account during the questioning.
- Everyone who was in-state went to court that day. My parents were called to testify, as was my brother, his doctor, and the social worker. I believe the doctor and social worker could have done a video testimony, but it's a small town so they just came to court.

The judge granted the guardianship immediately. Every year the court requests a guardianship update. My brother needs a physical with a letter from the doctor stating he is healthy and my parents are taking care of his needs, and an interview and a letter from the social worker stating he is ok. My parents also write a letter stating that he is healthy and happy and that they would like to continue the guardianship.

When my parents updated their will to include the guardianship paperwork, I was sent a letter from their lawyer outlining the instructions they have left in their will. I can contest what they have laid out, but my understanding is that if I have issues with how guardianship will be passed on (it goes to my other brother, not myself or my sister), it'll be a helluva lot easier to have my parents change the will while they are living than to contest it once they have passed.

As for how important is this to get taken care of, and why - having some sort of legal paperwork that gives you the right to make decisions on his behalf is hugely important. Without it, as an adult, he can countermand your healthcare wishes for you. If he's in a coma, there's no arguing between you and your ex as to what to do - you decide. A very clear example was when my brother fell ill and into a coma. My parents were easily able to make decisions when time was of the essence, and not have to worry about explaining why it was ok, or "oh wait we have to check and make sure it's ok", or anything like that. My mom has several notarized copies that she can take with her to places like hospitals to make it smoother and faster to establish who the decision makers are. My parents have known other parents with special needs children who didn't get guardianship, and had issues being able to make healthcare decisions for their children.

I don't know if it can be fast tracked. Your lawyer can tell you. My parent's process took a few months but they were not in a hurry (they knew it was coming for about 16 years, unlike your situation).

How can you frame it to your son? My parents framed it as, "It lets Mom and Dad to continue to take care of you. This way Mom will keep making your doctor's appointments, and Dad will keep taking you for haircuts. Nothing will change, we just need to tell other people that we don't want things to change." It worked because my brother HATES change. You may need to work with your child's mental health professionals to get ideas on how to explain it to him - I doubt this is the first time in their practice that this has come up.

I wish you luck. This is a difficult journey and I hope things work out for your family.
posted by RogueTech at 12:13 PM on June 13, 2013 [7 favorites]

I would never, ever get boilerplate anything when it comes to your family members. I recommend Atwood & Cherney I have personally met members at that firm and then recommended them to a friend who raved about the service they got.
posted by Ironmouth at 12:30 PM on June 13, 2013

I am not your lawyer (although I am a lawyer). This not legal advice.

I did this for my mom in Ohio. She has mental health issues too. Ohio(and most states) has a standard power of attorney for general financial matters as well as one for medical issues. We took the completed general and Medical PoAforms to a notary and her signature was witnessed by the notary.

Her doctors let me make all medication and treatment decisions for her on the basis of the medical power of attorney. The only thing the general power of attorney doesn't work for is social security. I think they may require their own form/process. Something to keep in mind if your son applies for SSI in the future. You'll want an attorney at that point any way.

Using the state form POAs have worked really well for us. We didn't have to spend money on an attorney. They let me make decisions for her during the crisis when she couldn't do it herself. And now that she's competent again, she can make her own decisions. If she has another crisis the POA are still good (we did not include an expiration date), so I can take over again if need be.
posted by bananafish at 12:42 PM on June 13, 2013

Also strongly recommending an attorney because these issues are so complex. One thing to clarify is that there is a difference between guardianship, which is more sweeping and gives you a whole lot more power over decision making (and unlikely in the case of an otherwise generally healthy young adult), and things like Power of Attorney which are much more specific and circumscribed (e.g., only for medical decision making, only for bank decisions, etc.). Each are complex and having a competent attorney who can guide you both through your options is so very important. I'm not sure if you've talked to your son about this yet, but it may be worthwhile bringing him into the discussion. If he feels comfortable agreeing to some kind of POA or similar it can make the process easier to navigate. Speaking with your community navigator or the hospital social worker would be helpful in having that discussion.

I'm so sorry your family is facing this, but your son is lucky to have someone who is standing by him through this.
posted by goggie at 1:03 PM on June 13, 2013 [1 favorite]

One thing that's important to note is that a medical power of attorney is quite a different thing from a guardianship. Power of attorney means that you can act on behalf of the individual with their consent IF they become incapacitated. Guardianship (of an adult) means that the person has been declared legally incompetent.

The latter is not only something that you need a lawyer to do; it's something that you need a court to declare. Your son at age 18 cannot just sign away his standing as a legally competent adult, even if there is a lawyer involved. If you think about it, this makes sense in a catch-22 sort of way: a person who is legally competent can't sign a document declaring themselves legally incompetent because such a declaration would be inherently false; conversely, a person who is legally incompetent can't validly sign a document declaring themselves legally incompetent because they don't have the competence to sign such a document.

It's a very serious deal and would entail extensive documentation from his treatment team that he is incompetent to handle his own affairs.

For the most part, sick adults are legally able to choose and refuse treatment in the United States, even when the sickness is mental in nature, except in certain exceptional circumstances.
posted by drlith at 1:44 PM on June 13, 2013 [1 favorite]

If he is receiving treatment as an outpatient, through a group or agency, they would likely have sources for referrals to lawyers competent in this area.
posted by megatherium at 1:58 PM on June 13, 2013

First, take a breath. Yes, you do need to act on this sooner rather than later, but you have a little bit of time to use here.

Have you considered what your son wants? Have you asked him? This is a very "I"-focused question, and obviously a large chunk of this is about you as a parent. However, another large chunk is also about your son turning 18 and becoming legally an adult even though he may not be ready for all that entails due to his illness. I don't hear you saying that you're talking things over with him, discussing options, and exploring what he needs and wants from you. I think that step needs to come long before he's signing away legal rights.

In my experience working with families as a non-DHS social worker, your biggest supports will be your family mentor and your ICC (if this person has a reasonable number of cases and has time to be there for you). They know the system, they've been there, and they know what it's like to be in your shoes. Lean on them. Make them earn those big social work dollars! (ha) It is normal and healthy to want a lot of support and reassurance that everything is going to be okay and your child is not going to be on the street at 18 years and 3 months. There are services to prevent this from happening. Let these people tell you all about them. Best wishes.
posted by epj at 2:19 PM on June 13, 2013

I am a therapist/social worker and have experience in these issues. First you could obtain a durable medical power of attorney. That would allow him to be in control as long as he is competent. If he has another episode in which he isn't, it just takes a doctor's (sometimes 2) letter saying he is not competent and you automatically step in to manage his health care. You can get the same document for finances. An attorney should draw it up for you so it is in effect as soon as he turns 18. He will have to consent to it. If he does not consent your only option is a guardianship when he has another episode. The DPOA allows you to go in and out of control as his mental health changes.

Also, you may want to talk to him about a psychiatric plan for the next time he has an episode. Get some feed back from him about how he wants things handled for him and how you can best help him. Then you will have guidelines and he will have already agreed to your taking charge.
posted by Jandasmo at 2:27 PM on June 13, 2013 [2 favorites]

To the extent that is possible, apprise your son of what you are doing and why. 17-18 year olds are extremely sensitive to parents exercising more parental control rather than less. Being psychotic can further enhance resentments.

I had a psychotic episode at 17. I had intermittent episodes through my twenties. Mostly things have been OK but I think I have some good advice about your situation As one gets past an episode there is a sense of bereavement about what things could have been like had one not gotten sick. As much as possible leave some decisions that you can up to your son. Try not to attribute conflicts of opinion about minor issues to his being sick or psychotic. If he does not want a certain clinic or doctor, a certain living arrangement, or similar and a safe, affordable, reasonable choice is presented you might consider going with his choice.

Dealing with his illness is likely to go on for more than a year, it might continue for decades. As much as is possible you'll want to cast your role as that of an ally rather than that of an authority.

You didn't mention delusions but I have a huge piece of advice about delusions and significant misconceptions that come from mental illness if they come up. Don't argue about them. Even if the person with psychosis wants to. Just say "That's not how I see things." Arguing about delusions seems ramp up the psychosis. There is no reasoning with it.

A group home setting might be a much better choice than having your son live at home for many different reasons. It will likely better enable you to better play the role of ally and minimize burnout. When psychotic young adults live with their parents there can be to much replay of earlier stages of life without the replay being productive or helpful. I'm not saying this from any theory that parenting styles are causal in mental illness. Living with very loving parents recovering from psychosis can be counter therapeutic because the psychotic person could have a heightened, maybe malformed awareness about their parents stress and grief about the situation. Then a feedback loop can develop, parent stresses about child's stress. who stresses about parents. Kind professional people in charge with numerous mentally ill people around for can actually make for a better therapeutic environment for many people.
posted by logonym at 4:38 PM on June 13, 2013 [5 favorites]

You may also want to look at financial conservatorship if your son is not able to manage his finances sustainably.
posted by judith at 12:14 AM on June 14, 2013

You may also want to consider talking to one of his therapists. I'm sure they are well aware of how to care for extremely ill patients. There may be a way to petition the court without incurring the costs of an attorney. A power of attorney in the state can be given to anyone, it is temporary, and has to be notarized. Anyone could give you the legal right to act or enter into contracts on their behalf. A health care proxy is permission given to someone in a health care setting to make decisions on treatment when the person is unable to. Like the decision to remain on life support vs not etc.

Keep in mind that although he turns 18, and has adult legal rights, he doesn't have the ability himself to exercise those rights. He is dependent on you, and doesn't have any means to support himself. Your greatest source of information and guidance would be all of the people you mentioned, his doctors and the people treating him. Express any concerns that you have with them.
posted by Nicholas Geary at 1:39 AM on June 14, 2013

You seem to have already taken this piece to heart, but do get a lawyer. I'm not him/her.

What you want to find, I think, is something I'll cross-apply from special education and other areas of disability law, the Least Restrictive Environment. For your son, that will mean that you want to give him as much power over his own life as he can reasonably be expected to exercise competently. If he can live on his own, he should. If you only need a power of attorney, get that instead of a guardianship. In order to respect him as the adult he'll soon be, you have to find that sweet spot where he'll be as independent as possible, yet safe and thriving.

Plenty of professionals can help you determine where the sweet spot is. Then you'll convince the court where it is. One is a lawyer, others might include medical, psychological, or social work professionals who have experience with your son. Another person who will have input will be his mom. Because the two of you might not agree on everything, you should have your attorney, and she should have hers. One attorney can't represent the both of you if your interests are at all in opposition to one another.

Good luck.
posted by PhatLobley at 8:41 AM on June 14, 2013 [3 favorites]

Mod note: From the OP:
Thanks, everyone, for all of your helpful advice. This sounds like something I'll most likely want a lawyer for, so I will definitely start down that path of finding someone competent. My regular lawyer told me it sounded complicated, and that I should talk to my son's psychiatrist first about determining what level of self-competency my son has, and added that he'd most likely refer me to someone else more capable of handling my case. So, I'll be bringing this up today with his psychiatrist, and with his ICC when I'm assigned one. I feel
pretty confident that I'm taking care of this issue with my eyes wide open, and your comments have given me much more perspective. Cheers!
posted by jessamyn (staff) at 12:08 PM on June 14, 2013

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