A Guide to Guardianship and Conservatorship for Addiction

When voluntary treatment fails and an individual's substance use disorder has rendered them incapable of managing their own affairs, families may consider seeking guardianship or conservatorship. These are blunt instruments with significant constitutional implications — and they should be pursued only after careful legal and clinical analysis.

Terminology and Jurisdiction

The terminology for court-supervised protective arrangements varies by state. "Guardianship" generally refers to authority over the person (healthcare decisions, living arrangements, personal care), while "conservatorship" refers to authority over property and financial affairs. Some states use different terms or combine both authorities under a single appointment. California uses "conservatorship" for both person and estate. New York uses "guardianship" under Article 81 of the Mental Hygiene Law. Florida uses "guardianship" under Chapter 744 of the Florida Statutes. The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), promulgated in 2017, provides a modern statutory framework that states are gradually adopting.

The Capacity Standard

The fundamental legal question in guardianship and conservatorship proceedings is whether the individual lacks capacity to make decisions for themselves. This determination is clinical and legal: a qualified professional (typically a physician or psychologist) evaluates the individual's functional capacity, and the court makes the ultimate determination based on that evaluation and other evidence.

In the addiction context, the capacity standard presents a particular challenge. Active substance use impairs judgment, but the impairment may be intermittent (present during intoxication or withdrawal but not during periods of sobriety). Courts have generally been reluctant to find incapacity based solely on a substance use disorder, particularly when the individual retains periods of lucidity and the ability to make some decisions independently. The question is not whether the individual makes poor decisions but whether they lack the capacity to make decisions at all — a higher bar that is not always met even in severe addiction cases.

State-Specific Frameworks

Florida: The Marchman Act

Florida's Marchman Act (Chapter 397, Florida Statutes) provides a unique statutory framework for involuntary assessment and treatment of individuals with substance use disorders. Unlike guardianship, which requires a finding of incapacity, the Marchman Act permits involuntary assessment when an individual has lost the power of self-control with respect to substance use and either has inflicted or is likely to inflict physical harm on themselves or others, or is in need of substance abuse services and, by reason of substance abuse impairment, is incapable of making a rational decision regarding that need. The Marchman Act is frequently used by families of individuals with severe substance use disorders in Florida and has become a significant tool in the crisis intervention landscape.

California: LPS Conservatorship and the CARE Act

California's Lanterman-Petris-Short (LPS) Act provides for conservatorship of individuals who are "gravely disabled" as a result of a mental disorder. Substance use disorders alone may not satisfy the "gravely disabled" standard, but co-occurring mental illness and substance use may qualify. California's more recent Community Assistance, Recovery, and Empowerment (CARE) Act, effective 2024, creates a new civil court framework for individuals with specified mental health diagnoses, permitting court-ordered treatment plans without a finding of incompetence. The CARE Act may be relevant for individuals with co-occurring substance use and severe mental illness.

Constitutional Constraints

Guardianship and conservatorship proceedings implicate fundamental constitutional rights: the right to liberty, the right to privacy, the right to make one's own medical decisions, and the right to due process. Courts impose guardianship only when less restrictive alternatives have been considered and found inadequate, and modern guardianship law favors limited guardianships (restricting only those areas of decision-making where the individual truly lacks capacity) over plenary guardianships (transferring all decision-making authority).

The constitutional constraints on involuntary treatment are particularly relevant in the addiction context. The Supreme Court's recognition of a constitutional right to refuse medical treatment (Cruzan v. Director, Missouri Department of Health, 1990) and the general principle that the state may not impose medical treatment on competent individuals absent compelling circumstances create significant limits on the use of guardianship to compel addiction treatment.

Practical Considerations

Families considering guardianship or conservatorship for a family member with a substance use disorder should understand several practical realities. The process is adversarial: the individual is entitled to legal representation and may contest the petition, creating a public court proceeding that exposes family circumstances to judicial scrutiny. The outcome is uncertain: courts may deny the petition if the individual demonstrates sufficient capacity, even if their decision-making is clearly impaired by substance use. The remedy is temporary: guardianships and conservatorships are subject to periodic review and may be terminated if the individual demonstrates restored capacity. And the remedy may be ineffective: court authority over the person does not by itself create motivation for recovery, and coerced treatment has a more limited evidence base than voluntary treatment.

Less Restrictive Alternatives: Before pursuing guardianship or conservatorship, families should evaluate less restrictive alternatives including professional intervention (which may motivate voluntary treatment engagement), trust-based distribution restrictions (which limit access to funds without restricting personal liberty), care management arrangements (which provide structure and support without legal compulsion), and representative payee or power of attorney arrangements (which may address financial management concerns without the need for court proceedings).

The Role of the Attorney

Attorneys involved in guardianship and conservatorship proceedings for individuals with substance use disorders should have expertise in both the procedural requirements of guardianship law in the relevant jurisdiction and the clinical realities of substance use disorders. An attorney who understands addiction as a clinical condition — rather than viewing it solely through a moral or behavioral lens — will be more effective in presenting the case to the court, working with clinical evaluators, and designing guardianship arrangements that are proportionate to the individual's actual functional limitations.

Families should also understand the potential for conflicts of interest in these proceedings. The family's interest in protecting the individual (and protecting family assets) may not perfectly align with the individual's own interests and preferences. Courts are alert to the possibility that guardianship is being sought for the family's convenience rather than the individual's protection, and petitions that appear motivated by financial control rather than genuine concern for the individual's welfare face heightened scrutiny.