Mental Disorders and Illness:  

Mental disorders and illnesses are common in the United States and internationally.  An estimated 26.2 percent of Americans ages 18 and older (about one in four adults) suffer from a diagnosable mental disorder in a given year.

Although some stigma exists concerning mental illness treatment, the majority of Americans seek mental health help at some point during their lives and are understanding of others who do so as well.  The good news is that society has progressed in its understanding and recognition of the various contributing factors, stressors, and triggers associated with mental health related conditions. 

Mental health and the law interact in numerous ways. The term "competence" signifies a legal conclusion that an individual is capable of entering into a binding contract, transferring assets, or participating in a legal proceeding. The provision of mental health services is regulated and, to some extent, publicly supported.

Mental Commitment Proceedings: 

Legal standards surround the process by which those who are mentally ill can be forced, against their will, to receive treatment. Statutes for involuntary commitment whether denominated as civil or as criminal and are subject to the due process clause of the 14th Amendment of the US Constitution. This is because involuntary commitment severly infringes on a person's right to be free from governmental restraint and the right to not be confined unnecessarily. Courts have held that such statutes must bear some reasonable relation to the purpose for which the individual is committed.  These commitments may occur to a minor or adult who is suffering from a mental disorder or illness, to a minor or adult who is struggling with drug or alcohol addiction, or to an adult who is suffering the effects of aging.

In South Carolina, a person may become subject to our Mental Commitment process if the person is deemed by local Law Enforcement to be a danger to him/herself or others. Once a person is deemed to be a danger to self or others, the person may be hospitalized against his or her will, and the county government becomes involved. These proceedings may be handled by the Department of Social Services--Adult or Child Protective Services Division and the county Family Court or they may be handled by the county Probate Court. Sometimes, cases may be under the jurisdiction of both the Family and Probate Courts.

Whereas a person may be hospitalized for a short time (typically fewer than 30 days), and may become subject to Court-Ordered out-patient treatment and/or counseling for up to 2 years as a result of a Mental Commitment Proceeding, the Mental Commitment statutes and process are not equipped to handle the needs and issues of a person who has lost mental capacity, and who is will likely not regain mental capacity in the foreseeable future. 

Not Guilty Due to Mental Disease or Defect: 

Finally and most conspicuously, the criminal justice system has, of necessity, to address issues of responsibility, appropriateness of trial and treatment in the light of mental health considerations.

States dictate how and when the insanity defense may be invoked in state court while the federal government does so for the federal court system. In 1984, the Insanity Defense Reform Act (18 U.S.C. section 17) was passed. Generally, it placed the burden of proving insanity on the defendant and it cut on the use of mental illness as a defense. Today, insanity is rarely invoked and of those, only a quarter succeed.

Mental Incapacity Due to Aging, Mental Illness or Injury:

Sometimes an individual loses mental capacity, and likely will not regain it in the foreseeable future. In this type of situation, whether the loss of mental capacity is due to Dementia (Alzheimer's, Lewy Bodies, etc), Cancer, Congestive Heart Failure, Brain Injuries, Stroke, ALS, Mental Retardation, Cerebal Palsy, Down's Syndrome, Autism or some other life-altering illness or injury, it may become necessary to petition the County Probate Court to have a Guardian and Conservator appointed for the incapacitated individual in order to obtain necessary medical care, apply for and receive government benefits, pay bills and manage finances, and prevent or end the abuse or neglect of someone who cannot make his or her own decisions responsibly or protect themselves.

In the State of South Carolina, a Guardian is the person appointed by the Court to make day-to-day living decisions, placement decisions and health care/medical decisions for someone who has been found to be mentally incapacitated.  A Conservator is the person (or entity) appointed by the Court to make all financial decisions, pay bills, apply for and obtain all applicable government benefits, etc.

Whereas the same individual may appointed to serve as both Guardian and Conservator, they are technically two different appointments for two different jobs. In addition, it is also possible for more than one individual to be appointed to serve as Co-Guardians and/or Co-Conservators.

However, in the event that one or more relatives are willing (and appropriate) to be appointed as Guardians and/or Conservator, it is also possible to have a professional Guardian and/or a professional Conservator appointed. This is also the preferred option if an individual either has no family members or the family members are inappropriate choices.  It is important to remember that in order to be appointed Conservator, an individual must be bonded.  If an individual cannot obtain a bond, that individual will not be appointed as Conservator. No bond, however, is required to be appointed Guardian.

In the State of South Carolina, the county Probate Court where the incapacitated person lives determines whether or not an attorney is required in order to file a Guardianship/Conservatorship action. In Charleston County, an attorney is required for these types of actions. In Berkeley and Dorchester counties, attorneys are not required, but instead families are strongly urged by the Court to obtain an attorney--particularly if the action is likely to be contested.  The term "contested" applies when family members are arguing over who should be appointed, or if one family member believes that the family member caregiver has been abusive or has misused money or property belonging to the incapacitated person.