Guardianship Issues and Alternatives to Guardianship : Ethical Considerations for Mental Health Counselors
The most recent famous example of guardianship is probably the November 2021 announcement that the legal guardianship of 39-year-old singer Britney Spears had ended . A contributing factor of her 13-years-long , court-mandated guardianship was what the New York Times described as her “ public struggles and concerns around her mental health and substance abuse .” Though most cases are not as public as Spears ’, guardianship issues for adults can be complex , and many involve mental health issues .
It ’ s crucial that Clinical Mental Health Counselors ( CMHCs ) who are asked to weigh-in on guardianship issues understand the ethical considerations involved . They should , of course , know what ‘ s involved in evaluating someone presumed to be incapacitated and be familiar with guardianship proceedings . It ’ s equally important that they be able to examine alternatives to guardianship and ways that they can assist clients with exploring such alternatives .
Richard Chapman PhD , LMHC , CRC , is a Licensed Mental Health Counselor in the state of Florida and a certified rehabilitation counselor . The assistant director for Disabilities Leadership at the Partnership for People With Disabilities , at Virginia Commonwealth University , Dr . Chapman is formerly a postdoctoral research fellow at the University of Kansas , where he has conducted research in the area of self-determination intervention and assessment for persons with disabilities . In addition , he has conducted research in the area of counseling for persons with disabilities and their families .
GUARDIANSHIP BASICS
First , an explanation of what guardianship is . Guardianship is when a civil court steps in and restricts or removes certain rights from a person who is believed to be incapacitated . This article addresses guardianship issues for adults only . For example , a court could take away an adult ’ s right to make certain financial and health care decisions on their own behalf as well as the right to choose where they live and with whom they associate . In certain states , the court can even restrict an adult ’ s right to vote in an election .
A court can take all of these rights , which most U . S . adults take for granted , and give them to someone else — usually referred to as a guardian — to make decisions on behalf of the incapacitated person . Though the terms guardianship and guardian are common in most states , some jurisdictions use the terms conservatorship and conservator .
Questions Related to Guardianship in General :
• Does the court determine who the actual guardian is ? Yes .
• Can someone unwilling to be appointed a guardian be appointed anyway ? No .
• Are guardians typically relatives ? Sometimes guardians are relatives , and sometimes guardians are paid professionals .
• What are the requirements to be a guardian — are they spelled out formally somewhere ? Guardian requirements are state-specific , and depending on the justification , typically a guardian has to be over the age of 18 ( at least 21 in some justifications ), have a clear criminal record , and have a clean credit history .
• How much oversight are guardians subjected to , so that it ’ s clear they are making decisions based on the interests of their ward and not self-interest ? Typically , guardians have to file annual reporting to the court , and they have to report on the client ’ s level of incapacity . Guardians typically are required to act in the best interest of the person who is incapacitated . continued on page 10
9 The Advocate Magazine 2022 , Issue # 2 American Mental Health Counselors Association ( AMHCA ) www . amhca . org