Legal Resources
Here’s a place to start looking for attorney support for SMI.
Note that TAC doesn’t provide legal advice on individual circumstances.
How can I find a lawyer with expertise in SMI?
When someone has severe mental illness (SMI), interactions with the legal system can become complex and can include touch points with both the civil and the criminal sides of the law. When and whether to enlist the help of an attorney can be confusing, and hiring legal counsel doesn’t guarantee a good outcome — regardless of the cost.
When hiring an attorney, be clear about what you are asking the attorney to do. For example, you might be a family member seeking guardianship, conservatorship, or power of attorney. If that is the goal, be sure to ask specific questions about what the guardianship order, if granted, would allow in terms of medical or financial decision-making or access to private medical information. TAC’s article on HIPAA has additional information.
Although filing a protection order doesn’t generally require an attorney, some family members seek legal counsel to complete the paperwork and to support them when they must testify before a judge.
State legal aid services provide low or no cost legal services to individuals who cannot afford legal counsel. Each state has a government subsidized legal aid organization. You can find more information at LawHelp.org. This site allows you to search by state for legal aid options and has options listed for mental health.
Your state bar association can also help you find an attorney who works with clients with SMI. The American Bar Association sponsors a website page called FindLegalHelp.org to help narrow the search, or from your browser you can type your state’s name and “bar association.” Use the site directory to find public information, perhaps through a common tab marked “for the public.” Many state bar associations also have phone numbers listed to ask for referrals.
Criminal legal system
If a person with SMI is arrested for an alleged crime, they become involved in the criminal legal system. Charges are filed by a government entity — not the victim. A victim might file a police report to press charges, but they are not the final decision-makers about whether criminal charges are filed. A defense attorney in negotiation with the prosecutor and the court determine how the case proceeds — called “adjudication.”
TAC provides a resource to support those navigating the criminal legal system. Hiring an attorney to defend someone involved in a criminal case is an option. If a defense attorney is not privately hired, the state is required to provide a public defense attorney free of charge. The quality of that defense may vary tremendously as most public defenders are overburdened with large caseloads, and a national shortage of public defenders is impacting how that right is upheld across the country.
Civil commitment system
If a person with SMI is unwilling to engage with treatment voluntarily and becomes so unwell that their behavior makes them dangerous toward themselves or others (as these terms are defined in the relevant state), they may become involved in a civil court process.
TAC provides state-by-state information about criteria for emergency evaluations and commitments for inpatient or outpatient services. TAC also provides a resource that describes the most common forms of involuntary and voluntary programming within the mental health continuum of care.
If a hospital or health agency pursues a civil commitment, the person being considered for involuntary care has the right to representation. An attorney, sometimes a public defender but not always, is appointed by the court if a private attorney is not hired. The attorney in a civil commitment case is there to follow the wishes of the person with the potential to be committed—regardless of their mental state. It’s important for family members to understand that the attorney appointed in this role is not there to ensure that their client can access mental health services and may argue their case in opposition to treatment.
Additional resources
LawHelp.org provides information about differences between civil and criminal cases and courts.
American Bar Association offers a glossary of legal terms with definitions written for general audiences.