This article is reprinted from CAI-GLAC’s Focus May-June 2020 Issue
May is Mental Health Awareness Month, and it is impossible to ignore the additional impact on our communities from the COVID-19 Pandemic. Under normal circumstances, we are impacted by the steady rise in occupancy rates in multi-unit residential communities. The challenges of individuals living in relatively close proximity to one another under rules enforced by lay leaders has its stress points that require each of us to develop a higher level of tolerance and a degree of civility.
But the physical, mental, emotional and economic impact brought about by Stay at Home orders, closed businesses and layoffs, has turned many communities into pressure cookers.
In times like these, the phrase “we are all in this together” does little to assist a community manager or volunteer director in dealing with a resident suffering from mental illness.
Typically, the foundation of the community association model is to provide residents the tools they need to take care of themselves. But as more and more residents chose to stay in their homes as they age, we can’t ignore those living amongst us who can no longer take care of themselves, or lack the ability to control their behavior in the common area. Add to this the blurred lines between fair housing laws and private residential communities and we find ourselves at a place and time where many residents have specialized needs and present unique challenges that board members and community managers aren’t trained or necessarily skilled to handle.
Adjusting to the needs of mental illness in community associations may be the most significant issue to face our industry in the years ahead. Hoarding, disorientation, dementia, and even homelessness are just some of the challenges facing private residential community associations. These challenges are not unlike those facing our general population. The difference is that our community association residents naturally look to those managing and governing the community to address these challenges. Not only do these issues pose a threat to the safety and welfare of the individual resident with special needs, but they also present risks for the association and its other residents.
Associations must set boundaries and residents (and their families) must be educated on the differences between assisted living and common-interest communities. Assisted living is a specialized care facility intended to provide a range of personal services, including medical care and supervision.
Common-interest communities, on the other hand, are designed to meet the needs of all residents equally and regulate the conduct of residents in relation to one another. In associations, the needs of the individual are generally subordinate to the best interests of the community as a whole.
As community association leaders, our duty is to act in the best interests of the community as a whole— to preserve and protect the property and address resident needs equally. But does that duty include being proactive to protect a resident who seems a bit forgetful or a bit disruptive from what might happen or what they might do? Does a duty to maintain common area include a duty to prevent a mentally ill resident from harming himself or another resident in the common area? Focusing on the individual at the expense of the whole challenges these norms. But our human impulse is to run to the aid of one in need regardless of the limitations imposed upon us by a job description or the governing documents. How do we act to protect the well-being of the resident while protecting the Association from liability? Herein lies the challenge for the community association manager or director: to create communities that care, but act within the legal boundaries of the common interest development; to provide residents with information that they need to protect themselves and to have available the social services resources that may be needed in the future so that the board or community manager does not end up as the reluctant caregiver.
In community association living, with a cross-section of different people of various ages and socio-economic backgrounds, there will always be a percentage of members/ residents who develop some form of mental illness or cognitive difficulty. According to the Centers for Disease Control, about 25% of adults aged 65 years or older have some type of mental health problem, such as a mood disorder that is not associated with normal aging.
Mental illness has a wide range of mental health conditions— disorders that affect mood, thinking and behavior, such as depression, anxiety disorders, schizophrenia, etc. In some cases, a diagnosis of mental illness has never been made or is obscured by a drug or alcohol abuse problem. Whatever the reason, when there is a community member with untreated or poorly- managed mental health issues in a community association, often and typically, the community manager is called upon to address the issue—whether prepared to do so or not!
COMMUNITY CONSIDERATION: AVOIDING LIABILITY
Is it reasonable for associations to increase assessments to cover the legal and financial burden of providing specialized care to the elderly or mentally ill? Is it appropriate to use resources dedicated for the entire community to assist an individual resident in need? Is it reasonable for all residents to pay to modify or redesign common areas to accommodate a few? Perhaps not.
An association is obligated to act in the best interests of the community and be proactive in addressing its needs. is may include: the duty of ordinary care in community governance; treating residents fairly and equitably; exercising discretion reasonably and in good faith; and disclosing pertinent information about the association, the common area and the rights and obligations of residents.
In some cases, helping an elderly disoriented resident may pose an unreasonable risk to a manager or board member. While not providing aid could jeopardize a person’s life, providing it may create an expectation that the association will always be available to assist.
Further, it is conceivable that a resident incapable of caring for herself could be injured in common area left in disrepair from deferred maintenance. It is not out of the range of possibilities that an association could be sued for allowing harm to a mentally ill resident caused by an unreasonably dangerous condition on the premises if the association could have discovered it and made it safe.
In addition, the Fair Housing Act may require an association to permit common area modifications if the health or safety of a resident is involved or to allow the resident the full use and enjoyment of his or her property. The Act protects individuals with physical or mental impairments that substantially limit one or more major life activity. While the Act doesn’t require associations to make fundamental alterations, take on undue financial burdens or provide residents with counseling or medical services, it may require the association to reasonably accommodate a resident’s request to modify the property.
The concern raised by this focus on the mental conditions of individual residents is that this disruption or anti-social behavior is a disproportionate drain on the community’s resources. It also impacts governance. Rule enforcement, rule comprehension or ability to comply becomes challenging if not impossible.
Typically, managers will be called upon to address a difficult situation involving a member or resident because the issue has escalated in such a manner that other staff members or even board members cannot resolve it.
When confronted with a community member who is presenting as mentally ill, the untrained community manager may tend to address issues from a policy, governance and rules perspective. As such, managers may attempt to deal with a community member who is displaying behavior, such as screaming uncontrollably common area or a member answering the door on a regular basis in the nude, by sending violation letters to the member in order to cure the issue.
Some managers when confronted with behavior, which is out of the ordinary, provocative or in some cases upsetting, may react by retreating altogether from the community member demonstrating the behavior. As an end result, the manager may ignore or avoid future occurrences of the behavior as a coping mechanism.
Or, sometimes if the behavior the community member is displaying is overtly aggressive, threatening or “over the top” in such a manner that even board members are afraid to deal with or address it, the manager may take matters into her own hands and confront the resident without the professional skills needed to de-escalate the situation and bring the resident under control.
In each of these possible scenarios (and there are likely others), the voice in your head is shouting, “this is not in my job description!”
While all these typical responses by managers are understandable when dealing with the very difficult issue of a mentally ill community member, these responses can make the issues presented by the mentally ill community members worse and more disruptive to the community.
As skilled community managers, or community leaders, after the panic dissipates, we can and we must draw from our years of training and apply basic liability avoidance and crisis management techniques to address mental illness in our communities.
Community leaders have an opportunity to take practical steps for the benefit of all residents while still remaining within the mandates of governing documents and true to the principles behind common interest development living. Associations can create a framework for caring communities by providing residents with the information they need to care for and protect themselves.
1. CREATE A PAPER TRAIL
Document any incidents that occur. Keep logs of interactions with the resident. Share this information with board members, confidentially, so that there is a record of the problem and how you have addressed it. Record-keeping is critical. Maintain a record of nearest relatives or next of kin. If possible, obtain the consent of the resident to contact next of kin in the event of an emergency.
Although contacting next of kin is a practical option, in the event the next of kin doesn’t respond, is too far away to act or doesn’t exist, board members and the manager may be faced with the unenviable task of becoming an on-site caregiver. Clearly, this role isn’t within anyone’s job description, but does the duty of reasonable care to maintain the safety of the common areas give rise to a duty to act to prevent harm to the elderly resident or another?
Finally, associations also should establish procedures to address specific needs of residents, including methods for logging complaints or incident reports, ways to recognize signs of a problem with elderly residents, and appropriate methods of communication that will allow residents to preserve their privacy and personal dignity. Communities should maintain and update a list on a yearly basis that includes emergency contact or next-of-kin information for all residents. Identifying common areas that can be modified to reduce the risk of injury or harm without significant cost or inconvenience will help make the community safer overall, while at the same time protecting the association from potential lawsuits should an injury occur.
2. DUE PROCESS
A community must enforce rules fairly and consistently among all residents. This may not be effective when conducting a hearing with a mentally ill resident. at being said, it is important for an association to document its enforcement and demonstrate that it followed proper procedure and did not cut corners in addressing a rule violation or disturbance by a mentally ill resident. If all your best, polite attempts to navigate the issues caused by the mentally ill member fail, it may be time to schedule a disciplinary hearing. Send a violation letter and warning to stop the behavior and schedule a hearing if the behavior continues. Regardless of whether these measures are effective, due process is necessary to demonstrate to a court that the association exhausted all avenues before taking legal action.
3. OBTAIN A PROTECTIVE ORDER/INJUNCTIVE RELIEF
If preliminary measures fail, the association may be forced to obtain a court order to stop the behavior. A court order will assist in bringing in law enforcement or social services to help with enforcement.
Dealing with challenging residents suffering from a mental illness is not for the faint of heart. It requires strength, patience and compassion. Even as an experienced community manager or board member, there is no quick fix or a clear resolution. Rely on available resources, each other and legal counsel to reach a humane resolution for the sake of the dignity of the affected individual and the community as a whole.
The obligation to preserve one’s health and safety should rest with each individual resident, not with the association. State departments, local hospitals and agencies may be able to offer on-site programs about independent-living services for those in need. Community leaders should make these resources available to their residents while making it clear that these third-party programs are not a product of or representation from the association.
Written material also can be provided, including contact information, websites and links where residents can go to learn more. By doing this, the association can provide residents and their families with the help they need without directly stepping in and compromising safety or increasing liability.
4. ENGAGE SOCIAL SERVICES
There are a variety of helpful social service programs that can assist you with a problematic, mentally ill community member. Sometimes, in order to get the individual the help they need, local authorities may need to be contacted to determine if the community member needs to be placed in a care facility or psychiatric hold. There are many resources available to community associations and their residents. (See sidebar)
Mental illness is a reality in our communities. By providing residents with early access to available resources before they need them, community association leaders can help residents make informed decisions about their own well-being before you are forced to do it for them. In this way, our communities can create an environment that supports the resident with special needs without burdening the community or placing the association at risk.
Social Service Programs and Resources
Administration on Aging: https://aoa.gov
Adult Protective Services: https://www.cdss.ca.gov/adult-protective-services
Alzheimer’s Association: https://alz.org
California Aging and Adult Information Line: Call 1-800-510-2020 for help finding local assistance.
Los Angeles County Department of Mental Health: https://dmh.lacounty.gov/
National Aging in Place Council: https://ageinplace.org National Alliance on Mental Illness: https://Nami.org
Older Californians Friendship Line: Call 1-888-670-1360 for 24/7 support if you are 60 years or older, or an adult living with disabilities
Senior Resource: https://seniorresource.com/ageinpl.htm
Workforce Development Aging and Community Services: https://wdacs.lacounty.gov/programs/aps
This article is reprinted from CAI-GLAC’s Focus May-June 2020 Issue
Written by Lesley Millender-Irwin, CMCA®, AMS®, PCAM®, is General Manager of the Excelsior at the Americana at Brand HOA in Glendale
Written by Matt D. Ober Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner at Richardson|Ober|DeNichilo.