A Primer for Attorneys
| Publication year | 2022 |
| Pages | 48 |
Mental Health Certifications in Colorado
BY PAULA CONSTANTAKIS YOUNG
This article discusses mental health certifications in Colorado and their importance in guardianship, trust, and estate matters.
Knowledge of Colorado's procedure for securing involuntary treatment for people with mental health disorders is a valuable tool for estate planning attorneys whose clients are guardians, conservators, or trustees with insufficient authority to address a mental health crisis for a ward/ protected person or beneficiary. For attorneys appointed to represent an individual in mental health certification cases, understanding the process and their clients' rights is essential. In Colorado, the certification process is codified in CRS §§ 27-65-101 et seq., which outline strict procedural and confidentiality requirements that, if not followed, can result in the certification's termination.
This article discusses emergency 72-hour holds, short-term mental health certifications, court-ordered evaluations, and long-term care and treatment. It does not cover impositions of legal disability for persons with intellectual and developmental disabilities, or alcohol and drug certifications, which are covered under CRS §§ 27-10.5-102 et seq. and CRS §§ 27-80-101 et seq., respectively.[1]
Mental Health Certifications
Mental health certifications are a mechanism to provide immediate mental health treatment to individuals who pose a threat to themselves or others but who refuse to seek or accept mental health treatment on their own. The process usually involves an involuntary hold and mental health evaluation at a treatment facility, followed by a period of involuntary hospitalization if certification is deemed necessary by the evaluator. An individual who objects to certification is entitled to a hearing before a judge or jury, who will either uphold or dismiss the certification. If an individual does not initially meet the certification criteria, they may still meet the criteria for a court-ordered evaluation that could later lead to certification.
Unlike a guardianship or conservatorship petition, which can be filed by a "person interested in the welfare of the respondent,"[2] only certain medical professionals can certify an individual for short-term mental health treatment.[3] Mental health certifications deprive a person's liberty, so the statutes must be strictly construed.[4] Though individuals may equate their hospitalization to incarceration and the certification to a criminal proceeding, certifications are not criminal in nature.
The scenario below illustrates how and when a guardianship/conservatorship and mental health certification might be used in tandem to assist an individual in need.
"Diane," an elderly, widowed mother of two adult daughters, lived alone in her large home. She exhibited symptoms of bipolar disorder and depression during her married life, but support from her husband helped keep these symptoms in check. After he died and Diane retired from her job, Diane's symptoms worsened and her behavior became more erratic. For example, she spent $30,000 on various items that she claimed were gifts for others, but such gifts were never delivered, and her neighbors found her outside several times in freezing temperatures while not properly dressed for the cold. Diane also had untreated colon disease and was at risk of continually infecting herself due to her poor hygiene. When Diane's daughters questioned her erratic behavior, she became angry.
Diane's daughters obtained emergency guardianship and conservatorship to address Diane's incapacity and need for financial protection. A mental health certification was also initiated because neither a guardian nor conservator can force a ward/protected person to undergo mental health treatment.
Guardianship/Conservatorship versus Mental Health Certification
To understand why mental health certification may be necessary, it can be helpful to first consider the limitations of guardianships and conservatorships.
A guardianship may be ordered for an incapacitated adult, who is deemed a ward.[5]A conservatorship may be ordered for an individual who needs assistance managing their assets; such person is deemed a protected person.[6] In a guardianship or conservatorship petition, the individual who is the subject of the petition is termed the respondent.
The burden of proof in adult guardianship, conservatorship, and mental health certification cases is by clear and convincing evidence, but each proceeding requires the petitioner to satisfy different elements. In an adult guardianship, the court must find that the ward is an incapacitated person whose physical health, safety, or self-care needs cannot be met by less restrictive means, including the use of appropriate and reasonably available technological assistance. A guardian has authority to make decisions regarding the ward's support, care, education, and welfare.[7]
In an adult conservatorship, the court must find that the protected person is unable to manage their property and business affairs because of an inability to effectively receive and/or evaluate information or to make and/ or communicate decisions, even with the use of appropriate and reasonably available technological assistance.[8] Once appointed, a conservator has the authority to manage the protected person's finances and business affairs.[9]
Guardians and conservators do not have the authority to consent to mental health treatment against a ward's or protected person's will. Thus, in situations where a person needs immediate mental health treatment but refuses to seek or accept such treatment, a mental health certification can be initiated.
In a mental health certification, the respondent must be found to be mentally ill after an evaluation, and as a result of such mental illness is (1) a danger to self, (2) a danger to others, or (3) gravely disabled. It also must be found that the respondent either has not accepted, or is not likely to remain in, voluntary treatment, and that the respondent is incompetent to participate effectively in treatment decisions.[
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]While both mental health certifications and guardianship proceedings include professional evaluations, these evaluations have different purposes.[11] The evaluation in a mental health certification case assesses whether the respondent requires mental health treatment that can only be attained through a period of involuntary hospitalization. In contrast, the evaluation in a guardianship case determines whether a person's cognitive and functional limitations constitute incapacity to such a degree that a guardianship is needed.
Certification Steps
A certification can be initiated by peace officers, medical doctors, psychologists, psychiatric nurse practitioners, licensed clinical social workers, or certain therapists/counselors.[12]Someone experiencing a mental health crisis may be taken into custody for up to 72 hours while an evaluation is completed. After the evaluation, the person may be released or they may be certified for short-term mental health treatment for up to three months.
Emergency 72-Hour Hold
A 72-hour hold may be used for someone who appears to have a mental health disorder and appears either to be an imminent danger to themselves or others or to be gravely disabled.[13]Gravely disabled means the person is at risk for substantial bodily harm, the worsening of a serious physical illness, or significant psychiatric deterioration due to self-neglect or the inability to provide for their own essential needs.[14]
If the person poses an imminent threat to themselves or others, part of the emergency hold process includes taking the person into custody and transporting them to a mental health facility for evaluation.[15] The evaluation must be completed within 72 hours, and the person must be either certified or referred for services on a voluntary basis.
Court-Ordered Evaluation
A court may order a mental health evaluation for a person who has routinely displayed dangerous behavior, even though the behavior was not observed by someone who can initiate a certification and danger was not imminent. This is helpful for clients who may have called the police about a family member or friend who needs to be certified, but the imminent danger has passed when the peace officer arrives, precluding the officer from taking the person into custody for a mental health evaluation. In such cases, the county attorney mental health unit may be able to help.
Under CRS...
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