Many people include health care powers of attorney or advance directives in their estate plans to have some influence over critical medical decisions in the event they’re incapacitated and unable to make those decisions themselves. A psychiatric advance directive (PAD) is less well known, but worth considering if your family has a history of mental illness. Or, you may simply want to memorialize your wishes in the event a psychiatric episode renders you unable to make decisions about your treatment.
Health care directives
To cover all the health care bases, it’s a good idea to have two documents: an advance health care directive (sometimes referred to as a “living will”) and a health care power of attorney (HCPA). Some states allow you to combine the two in a single document.
An advance directive expresses your preferences for the use of life-sustaining medical procedures — such as artificial feeding and breathing, surgery, invasive diagnostic tests, and pain medication — specifying the situations in which these procedures should be used or withheld. For example, you might instruct health care providers to withhold treatment in the event of a coma or permanent brain damage with little or no chance of recovery or include a “do not resuscitate” order.
A document prepared in advance can’t account for every scenario or contingency, however, so it’s wise to pair an advance directive with an HCPA. This allows you to authorize your spouse or other trusted representative to make medical decisions or consent to medical treatment on your behalf when you’re unable to do so. An HCPA can include specific instructions to your representative, as well as general guidelines or principles to follow in dealing with complex medical decisions or unanticipated circumstances.
Why a PAD?
Many states allow generic HCPAs and advance directives to address mental as well as physical health issues. But some states limit or prohibit mental health treatment decisions by general health care representatives. Around half of the states have PAD statutes, which authorize special advance directives to outline one’s wishes with respect to mental health care and appoint a representative to make decisions regarding that care. PADs may address a variety of mental health care issues, including:
- Preferred hospitals or other providers
- Treatment therapies and medications that may be administered
- Treatment therapies and medications that may not be administered, such as electroconvulsive therapy or experimental drugs
- A statement of general values, principles or preferences to follow in making mental health care decisions
- Appointment of a representative authorized to make decisions and carry out your wishes with respect to mental health care in the event you’re incapacitated
Although requirements vary from state to state, to be effective, a PAD must be signed by you and your chosen representative, and in some states by two witnesses. Be sure to discuss the terms of the PAD with your family, close friends, physician and any mental health care providers. And to be sure that the PAD is available when needed, give copies to all of the above persons, keep the original in a safe place and let your family know where to find it.
Get the facts
If you’re concerned about the possibility of mental illness and wish to have some say over your treatment in the event you’re incapacitated, learn about the relevant laws in your state. Consider a PAD if it’s available or look into options for using generic advance directives and HCPAs to address mental health care.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.