Home for the Holidays, An Unexpected Surprise: Part II
In Part I of this series, we discussed what happens when you come home for the holidays and find an elderly loved one who has obviously not been properly caring for themselves or handling their affairs. We discussed planning in advance for this situation and the process of Interdiction (called a Guardianship in Louisiana) to appoint a guardian (called a curator in Louisiana) to handle the elderly person’s affairs should there not be advanced directives in place. This month we will discuss what to do when you find the situation to be much more serious and find yourself in need of immediate assistance in order to protect your loved one or others.
In Louisiana, a person may be held in a treatment facility against their will if a physician signs an emergency certificate stating
- the person is dangerous to himself;
- the person is dangerous to others;
- the person is gravely disabled;
- or the person is unwilling or unable to seek voluntary admission.
In such cases, you may not be able to get your loved one to a physician to be examined and get such a certificate. If that is the case, you may go to the coroner’s office and request that a Coroner’s Emergency Certificate be issued. You will have to provide information and facts to provide the basis for why you believe your loved one meets the above criteria. If the coroner issues the certificate, a peace officer may be sent out to transport your loved one to a treatment facility for care.
Once at the treatment facility, a patient must be examined by a second physician within 72 hours to confirm they are a danger to themselves or others or gravely disabled. If this is confirmed, they can be held up to 15 days (and in some cases an additional 15 days upon execution of a second certificate). The patient can receive medication and treatment without their consent; however, they cannot receive a major surgical procedure without a court order.
In cases where the patient cannot be treated and safely released during the emergency period of 15 days (and a possible additional 15 days if a second certificate is issued), a petition can be filed for a Judicial Commitment. In this case, a judge will hold a hearing and listen to witnesses, including the treating physicians. The patient has a right to an attorney, the right to an independent medical exam, and the right to cross examine the witnesses. In order to issue an order for judicial commitment, the court must find clear and convincing evidence that the patient is
- suffering from mental illness;
- the mental illness causes that person to be a danger to himself or others;
- or that mental illness causes that person to be gravely disabled.
If the above factors are proven, the court can order that the patient be committed to a treatment facility for period for up to 180 days, which can later be extended by subsequent court action.
Of course, no one wants to see their loved one put through the process of commitment, though it may be necessary for their own safety, as well as the safety of others. In addition, the emergency certificate and commitment processes do not appoint a guardian to handle the financial affairs of the patient during their confinement. If that is needed, a Guardianship proceeding (which was discussed last month) may be needed.
If your trip home for the holidays reveals your loved one is a danger to themselves or others, it is important to seek immediate medical attention. After the immediate danger is over, it is a good idea to seek the advice of an experienced estate & elder law attorney to protect your loved one’s health and finances for the long term.
