Suppose that you find yourself in a situation where you have a loved one who is not doing well from a mental health perspective. He or she may have an undiagnosed mental health issue that is troubling your family and making life difficult for that family member. On the other hand, you may also have a family member who has tried for years to deal with the consequences of a mental health condition but has done so with varying degrees of success. Certainly, it can be a challenge for you, your entire family, and obviously for your family members to deal with the ups and downs of a mental health problem.
This is especially true when your family member does not have control over themselves, their behavior, or even their thought processes. I can tell you that one of the major factors that play into the success of a person who has mental health challenges, as far as developing a game plan geared towards overcoming those challenges, is to have family members who love and support them. For many families, it is easier to deal with the purely legalistic challenges associated with mental illness. It is another story altogether to learn how to love and care for a person who can make that difficult much of the time.
The attorneys with the Law Office of Bryan Fagan would like to share with you some tips on how to handle both sides of the equation. While we are not mental health counselors and do not claim to be, we still have a great deal of experience in working alongside families who have tried to do the best they can considering the circumstances they find themselves. Some of our most rewarding cases involve being able to serve mentally challenged and mentally ill persons and their families.
If you have questions about this area of the law, then please do not hesitate to contact the Law Office of Bryan Fagan for a free-of-charge consultation. We offer these consultations six days a week in person, over the phone, and via video. When you are dealing with challenges associated with a family member who has a mental illness then time is of the essence. Not being able to predict the behavior of a person who isn’t in control of themselves is a dangerous situation. However, you do not need to be intimidated by the circumstances which you are facing. Having a plan to encounter these legal difficulties will make it easier for your family to develop a plan on how to care for that person and love him or her to the best of your abilities.
Power of attorney for a mentally ill individual
in many cases, even if your loved one suffers from a mental illness, he or she may still be cognizant and lucid enough to be able to write a power of attorney. Many times, these folks will go in and out of periods where their level of consciousness will be greater than during other periods. As a result, when you and your family members identify a lucid period where your family member is easier to reason with and is more responsive to your questions and concerns then this is a great time to work with him or her to have a power of attorney executed. You may not be able to do so considering the fluctuations your relative has with going in and out of lucidity.
However, if you are not sure that the person is competent to execute a power of attorney then you can and should work to schedule an appointment with that person’s doctor, therapist, or other provider. The doctor can oftentimes help you to identify traits and signs of competency so that you can better work with him or her to execute the power of attorney if that is what your relative wants to do or is willing to do.
This will entail you having some patience with your relative. Explaining to him or her what the document is and why you are asking him or her to sign it is a good start. This alone may be a challenge for you and is a situation where the attorneys with the Law Office of Bryan Fagan would be happy to help you in this process. We can walk through situations like this with you or with you and your family members in a free-of-charge consultation. Remember, sometimes the most difficult part of this entire process is simply having the discussion to begin it.
What is a power of attorney?
A power of attorney is a legal document in which an adult can appoint another person to act on their behalf in matters related to their health, their finances, or in all activities which affect him or her. As we have already seen, one of the key parts of this discussion is being able to have an adult be confident to enter the document. A problem that many families run into is that the person who executes the power of attorney may not be legally competent to do so and that power of attorney may be challenged in court. This means that if you are helping a family member fill out a power of attorney then you are better off doing so after having spoken with the doctor or received some other confirmation of that person’s competency.
Your mentally ill family member will be known as the principal. This means that he or she is the person making the document and would then have the decision to make as far as whom he or she chooses to be their agent within the power of attorney. The agent is known as the attorney. Another decision that your family member will need to make is the scope of the power of attorney as far as what type of authority will be granted to the agent. Getting back to what we were speaking about in the prior paragraph it is very important that you and any other family member helping your mentally ill relative be sure that he or she is fully aware of what is happening so that he or she can make good decisions for themselves.
It is possible for a power of attorney to provide very little in the way of authority to make certain decisions. For instance, your relative could provide power of attorney to you or another person to perform a single action like selling a home, or piece of real estate or simply transferring title to a motor vehicle. On the other hand, as we have already covered the authority within a power of attorney can be rather vast and can even include handling all matters regarding their health and finances. Likely, the degree of the mental illness suffered by your family member will play a large part in determining the breadth of the power of attorney.
When does the power of attorney terminate?
The power of attorney will terminate either when the attorney-in-fact passes away or when your mentally ill relative passes away. Keep in mind that a durable power of attorney is only valid if your relative is cognizant of what is happening. If he or she were to become mentally incompetent, then the power of attorney would no longer have authority. However, you may be able to work within the laws of Texas to create a power of attorney that is maintained despite the mental state of your relative. For that, you should certainly work with an experienced guardianship attorney such as those with the Law Office of Bryan Fagan.
A power of attorney is an important document that can and should be completed during the estate planning process. Having a durable power of attorney for important subjects like finances and health care decisions is important because these are areas that can severely impact your well-being, the well-being of your family, and specifically the well-being of your mentally ill relative. When he or she is incompetent then there is no ability to create the power of attorney. A judge would need to appoint a guardian for your mentally ill relative in that case. When this happens the principal under your power of attorney arrangement would not be able to influence who the court names as guardian.
Keep in mind, however, that just because someone has a mental illness does not mean that he or she is necessarily mentally incompetent. While this is certainly a widely held belief it is not true. One of the things that has become more mainstream and widely accepted is the ability to receive mental health care for issues like anxiety, depression, post-traumatic stress disorder, and a range of other mental health challenges. Just because your loved one is receiving care for these issues does not mean that he or she is mentally incompetent. Different organizations or even different doctors would have differing views on what makes up mental incompetency. However, being unable to care for themselves when it comes to finances, health, and general well-being is a good barometer for determining the mental health of an individual.
It is very likely true that your relative’s mental illness is a limiting factor for him or her. However, it is unlikely that the condition always renders him or her completely mentally incompetent. If your relative has a history of being institutionalized or receiving inpatient mental health care then that may be a different story. However, when we talk about mental health challenges this is what we mean. You and your family will be walking on a journey with your mentally ill relative to help him or her regain as much autonomy and control over their life as possible. At the same time, a power of attorney can help direct their care and activities To a great extent.
How can you determine if you’re relatively mentally competent to create a power of attorney?
There is no set way to determine mental competency. However, there are several criteria and characteristics that you and your family can look to when trying to determine whether your mentally ill family member can create a power of attorney. Rational behavior is one way to determine that your relative can complete a power of attorney document. Using a logical framework in their life, working, being able to maintain a discussion about their specific circumstances in generally acting in a way that conforms with the norms of society are good tests to determine rationality. Being able to live in reality and not existing in a world of fantasy or make-believe are good indications that your family member can act rationally.
If your family member is in a position like this and can speak to you about everyday subjects and issues which may affect him or her then you can determine whether or not it is an appropriate time to speak about the benefits of a power of attorney. You can attempt to have this discussion when you are confident that he or she is lucid and otherwise doing well enough to seemingly understand the authority of a power of attorney and what it means for him or her.
What can you do when you have a family member who will not try to get better?
This is an unfortunate situation for your family and your loved one to find yourselves in. It is often the case that people who have mental health or other problems are not willing to try and find a treatment or maintain the treatment regimen that they are on. Many times, a person will take medication, attend therapy, or otherwise take positive steps to get well for a certain period only to backtrack and then deny that he or she has a problem at all. You may find that this happens when your family member feels better after taking medication for an extended period but then stops taking the medication because he or she believes themselves to be healed or cured.
Trying to beg or plead with your family member into trying to seek medical care can result in your family member completely shutting down and denying you the ability to speak to him or her about their mental health or anything for that matter. If you want to speak to your family member about the situation, then you can do so but make sure to be careful about the way you phrase questions or otherwise conduct yourself. For instance, if you approach the person and make it seem like you are blaming him or her or are being too accusatory about their behavior then you can lose their attention and trust. Instead, try to talk about their issue from the perspective of yourself or your family members. This will put less pressure on the other person and not cause him or her to go on the defensive.
What you can also do along with your family is to learn about how mental illness operates and how your family can serve your loved one who suffers from mental illness. This does not mean that your family will automatically become licensed therapists simply by watching a few videos on YouTube. However, what it does mean is that you all can learn about the challenges faced by your family member to be able to help him or her find medical care, therapy, or other outreach organizations that can assist in what may turn out to be a lifelong journey towards mental wellness.
Being able to gain the trust of a mentally ill individual is not easy. Oftentimes these folks go through periods where they do not believe that you are trying to help them. Despite your best efforts, these folks can feel like you are out to get them or are blaming them for their mental health deficiencies. In a situation like that, learning conversational methods to stay involved in that person’s life is critical. Simply being there for your mentally ill family member can help in ways that you or your family member may not even be able to understand at that moment.
When it comes to the legal issues associated with helping your mentally ill family member the Law Office of Bryan Fagan stands ready to assist you. We have the legal know-how, experience and any other quality that you could ask for that comes to being able to help a person who may not know how to help themselves. We are here for your family and would be happy to speak with you about whatever circumstances you are facing at this moment.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’sblog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas guardianship law as well as about how your family circumstances may be impacted by the filing of a probate or estate planning lawsuit.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
