Bill establishes pilot program that would place people who are incapacitated in an executorship and appoint them a guardian

People unable to care for themselves due to mental illnesses could be subject to receiving treatment, even without their consent, if Washington state legislators pass a proposed law to establish executorships for people who are incapacitated.

“Our mental health and addiction system of care is failing, in my view, the most vulnerable,” said the proposed bill’s primary sponsor, Sen. Steve O’Ban, R-Pierce County.

If passed, Senate Bill 6109 will initiate a four-year pilot program in King, Pierce, and Snohomish counties, effective Jan. 1, 2021. Each county would be responsible for treating 10 persons during the pilot.

The bill places people who are incapable of caring for themselves because of a mental health disorder in an executorship, and requires that the counties provide services, such as housing and treatment. The executorship may be renewed after one year if a petition is made to do so.

According to the Centers for Disease Control and Prevention, there were almost 45,000 suicides in the U.S. in 2016 and 46% of suicides are committed by those with a known mental illness.

“We are losing hundreds, probably thousands, of our young people,” O’Ban said. “They’re our sons and daughters, and they could live lives of dignity, of creativity, and of service. The enormous waste of human potential is tragic.”

Jerri Clark, founder of Mothers of the Mentally Ill, lost her son when he took his own life last March. He suffered from severe bipolar disorder and made several suicide attempts before he succeeded, Clark said during a press conference held Friday, Jan. 31. Instead of receiving effective treatment, he cycled in and out of hospitals, homeless shelters, and jails, Clark said.

“He was forced into the margins of society by a system that not only refuses to help, but actually requires violence and destitution before help of any sort that is reasonable is available at all,” Clark said at Friday’s press conference.

Several people who suffer from a mental health disorder also experience anosognosia, a condition in which someone is unaware that they are suffering at all, according to the National Alliance on Mental Illness.

“They do not have the ability to take care of this illness on their own because of the illness itself,” Clark said.

A person who has had “at least five detentions in the most recent 12-month period” is eligible for the executorship, according to the Senate Bill Report. An investigation is conducted by a court appointed resource executor officer who determines if an individual is incapacitated.

The bill defines a person as incapacitated when they are at a significant risk of personal harm based on their inability to care for their own health, housing, or safety. The person who is incapacitated will receive guardianship, the extent and duration of which is decided by the court.

Some mental health advocates worry that an incapacitated person may lose several of their rights to their guardian. A person may lose their right to, “marry, divorce, or enter into a domestic partnership; vote; enter into a contract, or make or revoke a will; have a driver’s license and drive; buy, sell, own, or lease property; consent to or refuse medical treatment; decide who will provide care, and; to make decisions,” under this guardianship, according to the Senate Bill Report.

“Guardianship is a complete loss of civil rights,” said Melanie Smith, a representative for the National Alliance on Mental Illness Washington and who testified in opposition of the bill at a public hearing held Friday, Jan. 31.

David Lord, director of Public Policy for Disability Rights Washington, suggested implementing a supported decision-making agreement instead of appointing a guardianship, which is outlined in Senate Bill 6287, at the recent hearing.

The agreement is a “legally recognized strategy where people identify supporters, and then they’re able to make a plan,” Lord said.

The bill currently waits to be passed out of committee, and will move on to the Senate floor if it does.

“The cycle must end of refusing treatment, followed by hospitalization or jail, followed by refusal of treatment, followed by hospitalization or jail,” O’Ban said at a Jan. 31 press conference. “The cycle must end.”