Clients (and family members) are often confused by the difference between civil commitment, guardianship and other similar-but-different legal proceedings. A recent Arizona appellate decision made us think about those differences. Let’s see if we can clarify.
First, the case
Actually, the case that made us think about this isn’t about guardianship or vulenrable adults at all. It’s about criminal charges, including murder.
In 2018, Joel Carson was charged with murder in Maricopa County (Phoenix) courts. He had walked into a Circle K store, shot one customer and held eight others hostage. They overpowered him and escaped. Carson was then apprehended and arrested.
His murder case was put on hold when a judge ruled that his mental illness made it impossible for him to understand the charges against him, or participate in his own defense. Then the County initiated a civil commitment proceeding.
As commonly happens in civil commitment cases, the treatment facility decided that Carson should be treated as an outpatient. They released him, conditional on his continued participation in his own treatment and compliance with his medication regimen.
The State then tried to re-initiate the murder (and related criminal) charges. They reasoned that if the civil commitment process had resulted in his release, that should be an indication that he could once more stand trial.
The Arizona Court of Appeals disagreed, and once again dismissed the criminal charges. The appellate court ruled that the State would have to show that Carson had regained his competence to stand trial. Carson v. Hon. Gentry/State, July 9, 2024. But that got us thinking about the differences among the different standards.
This is Arizona law
As always, a disclaimer: we write here about Arizona law. Other states may draw different distinctions. They might even use some of the same words, but attach different meanings to them.
That said, Arizona distinguishes between these different tests for competency, capacity, and vulnerability:
- Incapacity — that’s the term Arizona uses for someone for whom a guardianship is sought.
- Need for protection — this awkward phrase refers (in Arizona) to someone who is unable to manage their own finances because of their mental limitations, extreme physical limitations or other cause. A person who needs protection may have a conservator appointed to handle their finances.
- Incompetence — while less clear (and often misuses), this term usually refers to a person who has been found to lack the ability to understand criminal charges against them, or to participate in their own criminal defense. It may sometimes refer to someone who has been found “not guilty” of criminal charges by virtue of their mental illness.
- Vulnerability — someone who is vulnerable (as a result of their mental condition or physical dependence, for example) may be subject to exploitation. But that’s not the same as a “need for protection” above. And remedies for the exploitation are very different from the other kinds of protective proceedings.
- Then there are a batch of (mostly unrelated) terms describing someone subject to civil commitment proceedings — which might lead to either inpatient or outpatient treatment orders:
- Danger to self
- Danger to others
- Grave disability
- Persistent and acute disability
How do they relate to one another?
Mostly, they don’t. A person might be vulnerable to exploitation, for example, but not subject to a conservatorship. Or, like Mr. Carson, they might be incompetent to stand trial but not subject to inpatient civil commitment. Or they might be subject to an outpatient civil commitment order but not incapacitated, so have no guardian appointed.
Of course, many people with mental illness will fit into more than one of the categories — though sometimes uneasily. A person who has been civilly committed to an inpatient treatment program is likely to be unable to make responsible medical decisions (the standard for a finding of incapacity). So they might have a guardian appointed. But it is far from automatic.
The disconnect can operate in the other direction, too. Someone appointed as guardian for a mentally ill (or demented) family member might think that empowers them to place their family member in a psychiatric facility. But that’s the realm of civil commitment, and guardianship does not convey that power — besides which, there aren’t many facilities capable of retaining an active and uncooperative patient, even if a guardianship has been instituted.
I think you’ve described my mother/father/sibling. How can I start the proess(es)?
Slow down. Most of the above categories require medical evidence. That means that you’re going to need to start with a diagnosis, prognosis and treatment plan. And some of the categories can only be initiated by the government. For example, though you can make a referral for civil commitment, you can’t literally start the proceeding. That requires a psychiatrist’s instruction, and almost always it has to be the medical director of a psychiatric treatment facility.
Vulnerability, by itself, is a different category from the others. It usually is something that a family member asserts to undo past actions — like transfers of property, for example. But even that is usually going to require some medical evidence.
This entire area is complex, and family members (and sometimes concerned friends and neighbors) are often overwhelmed by the distinctions and treatment options. We can counsel clients about what choices they might face, but we can’t magically present treatment options or court outcomes. That said, we can actually help navigate the process. And we certainly understand the anxiety, confusion and frustration experienced by family members in too many cases.
