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Differences Between Voluntary Commitments, Involuntary Commitments and Guardianships

Voluntary Commitments

For a voluntary commitment, the patient agrees to be admitted to a hospital for psychiatric treatment. There is no court order of temporary commitment and thus no court involvement in the process.

Often a voluntary patient requests to be discharged. This situation typically occurs because patients feel that they are better. If the patient's treatment team opines that involuntary commitment is necessary, a voluntary commitment can be converted to an involuntary commitment. In that case, a court order for temporary involuntary commitment must be obtained based on two certificates – one from a psychiatrist. At the hearing for voluntary patients, the judge must determine that the patient is not at the hospital on a voluntary basis or that the patient lacks the competency to understand what “voluntary” means.

Involuntary Commitments

For an involuntary civil commitment, the mentally ill person must first be found to be a danger to self or others or property. Danger to self includes the inability, without assistance, to satisfy need for nourishment, essential medical care or shelter. Secondarily, the person must be unwilling to be admitted voluntarily. Finally, they must be in need of treatment. Like with a guardianship, two certificates are required to be filed by the screening team. At the screening service, a mental health screener would have first assessed the person and completed a screening document. The person would then be assessed by a psychiatrist (or other physician). The psychiatrist or other physician must conclude that involuntary commitment was necessary. If continued involuntary commitment is deemed necessary by the patient's treatment team, the facility or hospital shall initiate court proceedings.

Typically, the presiding judge in Civil Part enters these orders. Before signing an order of temporary commitment, the judge must find “probable cause to believe that the person is in need of involuntary commitment.” Once an order is made for involuntary commitment, the Court must have a hearing within 20 days. The order must state a place and date certain for the initial commitment hearing. County counsel presents the case for involuntary commitment on behalf of the State. The burden of proof is on County Counsel to establish that commitment is appropriate. The patient is assigned counsel to represent him or her at the hearing. The patient has a right to be at the hearing and to present testimony on his or her behalf. At the conclusion of the hearing, the Court must determine whether or not the State has met its burden of proof. If so, the Court will continue to the commitment. If County Counsel fails to meet its burden, the patient will be discharged. Often, commitment is continued pending placement. This means that the patient no longer requires acute psychiatric treatment, but instead can be released to the community or another appropriate facility with conditions. Without a temporary or final court order, the patient must be discharged within 48 hours of the discharge request or at the end of the next working day following the request, whichever is longer.

A judgment of involuntary commitment does not act as an adjudication of incapacity. The commitment statute clearly states no patient may be presumed to be incapacitated because he has been examined or treated for mental illness, regardless of whether such evaluation or treatment was voluntarily or involuntarily received.


While commitment proceedings deal with patients who suffer from mental illness, a guardianship is a civil adjudication of incapacity based on physical and mental health, or mental illness. A Judgment of Incapacity is based on the filing for guardianship by a third party. While the incapacitated person in a guardianship proceeding may self neglect, their actions do not necessarily rise to the level of “danger to self or others”. As with the involuntary commitment, two doctors certifications are required. The court will appoint an attorney to represent the alleged incapacitated person. That attorney will then report back to the Court as to his or her interaction with the client. The Court will render a Judgment which addresses the needs of that particular person. Sometimes that means a guardian of the person and estate. Sometimes, the Court may appoint a limited guardian, where the alleged incapacitated person has the ability to govern certain aspects of their life, but not others.

Disclaimer: The materials on this website are intended for general informational purposes only. These materials do not, and are not intended to, constitute legal advice. Visitors to this website should consult with competent legal counsel. This webpage is not intended to, and does not create, an attorney client relationship with Weiss, Tom & Trapanese, LLC or any of the firm's lawyers. This website is not intended as an offer to represent you.

More Information about Commitments and Guardianships

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