Paul B. Bartlett, P.C.
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Mental Health Powers and Alzheimer's in Arizona Guardianships

A guardian of an incapacitated person may consent to psychiatric and psychological care and treatment, including the administration of psychotropic medications, if the care and treatment take place outside an inpatient psychiatric facility licensed by the department of health services. See Arizona Revised Statute Section 14-5312.01 A.

If a court bestows mental health placement powers upon a guardian pursuant to Arizona Revised Statute Section 14-5312.01, the guardian can give consent for the ward to receive inpatient mental health care and treatment, including placement in an inpatient psychiatric facility licensed by the department of health services and medical, psychiatric and psychological treatment associated with that placement.

What if the ward does not suffer from psychosis or neurosis? Suppose he or she has dementia, and as the result of the dementia is attacking a spouse or assaulting caregivers. Does a court in Arizona have the authority under Arizona Revised Statute Section 14-5312.01 to grant mental health placement powers? Would those powers then permit the guardian to admit the ward to a geropsych facility to modify the ward's behaviors?

A Geropsychiatric Unit has to be licensed in Arizona by the Department of Health Services. Patients are admitted on an inpatient basis to receive diagnosis and treatment of acute emotional and behavioral disorders related to aging, such as depression, dementia and adjustment difficulties. Is this the same as receiving mental health care and treatment, as is required by 14-5312.01(B)?

To answer this question, we ought to look at how the disorders treated in a Geropsych unit are coded. The source of the coding is the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, otherwise known as DSM V. This updated manual has replaced the term "dementia" with major neurocognitive disorder and mild neurocognitive disorder. They are both mental disorders, or they would not be in the manual.

14-5312.01(B) requires that there be clear and convincing evidence that the incapacitated person is likely to be in need of inpatient mental health care and treatment. It also requires that the evidence be supported by the opinion of a mental health expert who is either a specialist in psychiatry or a psychologist. It does not appear that the opinion of a primary care physician or even a neurologist is sufficient. A psychiatric opinion may be difficult to obtain in an emergency, especially if there has been no prior contact with a psychiatrist. An interview with a neuropsychologist may be more readily available when there is an emergency.

The neuropsychologist should make a finding that the patient suffers from a neurocognitive disorder, as set forth in the Diagnositic and Statistical Manual of Mental Disorders, Fifth Edition. If there is a concomitant adjustment disorder, the report should include the code for that out of the DSM V.

There was a time when 14-5312.01 did not exist. Instead, Title 36 provided for a special kind of guardianship intimately related to court ordered mental health treatment. To this day, Title 36 bases court order treatment on findings that the patient is a "danger to self", a "danger to others" or "gravely disabled". "Persistently and acutely disabled" was added later, after Title 36 guardianships morphed into 14-5312.01.

A patient suffering from a major neurocognitive disorder like Alzheimer's disease would have fallen within the criteria of "gravely disabled".

"Grave disability" means a condition evidenced by behavior in which a person, as a result of a mental disorder, is likely to come to serious physical harm or serious illness because the person is unable to provide for the person's own basic physical needs. Arizona Revised Statute Section 36-501(15).

"Mental disorder" means a substantial disorder of the person's emotional processes, thought, cognition or memory. Arizona Revised Statute Section 36-501(24).

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