Periodically in this column we address the importance of obtaining power of attorney documents so that individuals may appoint trusted agents to handle their legal and financial affairs and make health care decisions if the individuals should become unable to manage these details independently. Communication and decision-making about health care issues can be more complicated when mental health situations are present. Although a Durable Healthcare Power of Attorney document is generally sufficient for an agent to oversee an individual’s health care in all situations, when mental health situations are present, an extra level of protection can be obtained by also having advance directives specific to mental health.
Mental Health Advance Directives are not available in all states. In Pennsylvania, a law became effective in January, 2005, which approved the use of this document. This document contains two parts; a declaration and a power of attorney. A declaration contains specific instructions to health care providers about choices for types of treatment including medications, procedures, participation in experimental studies or drug trials and the use of electroconvulsive therapy; as well as the names of preferred providers/health care facilities. The Mental Health Power of Attorney allows an individual to designate an agent and alternate agents to make decisions on his/her behalf, and specifies whether the agent has full power over all decisions or if limitations are present. Each part can be utilized independently, or a combination of both can be drafted.
Certain factors must be taken into consideration when formulating a Mental Health Advance Directive. An individual must be at least 18 years of age to draft the document and must not have been declared incapacitated by a court, had a guardian appointed, or be under an involuntary commitment. There is no one specific form that must be used, but it must be signed, witnessed by two people age 18 or older, and dated. The document will remain in effect for two years from the date that it is signed, unless it is revoked or a new document is drafted. If the individual does not have the capacity to make treatment decisions at the time the document is scheduled to end, it will remain effective until capacity is regained. Incapacity is determined after an exam by a psychiatrist and one of the following; another psychiatrist, psychologist, family or attending physician, or a mental health treatment professional.
An individual can specify in the Mental Health Advance Directive when it should become effective (such as when involuntary commitment occurs or incapacity is determined). A health care provider is obligated to follow the instructions in a Mental Health Advance Directive unless the instructions are against accepted clinical or medical practice, the treatment is not physically available, or the policies of the provider (such as what is covered by insurance) do not allow compliance with the instructions. If the health care provider is unable to comply with the instructions in a declaration or the decision of mental health care agent, the provider must inform the individual or the individual’s agent/guardian, and reasonable efforts must be made to transfer the individual to another facility which will comply with the instructions and/or agent’s decisions.
The document can be revoked or changed by an individual with capacity at any time, orally or in writing. If changes are made, it is best to draft a new written document to avoid potential misunderstandings. In order to make sure that a Mental Health Advance Directive cannot be challenged, an individual may request a letter from his/her treating physician that capacity was present at the time the document was drafted. The letter and Advance Directive should be kept together. Another tip to help prevent a challenge is to include statements that explain the reasoning behind the preferences which are stated in the Advance Directive.
As part of a declaration, an individual may nominate another person to serve as a guardian if that situation should arise. Guardians are appointed by the court system, but the court will consider the most recent nominee unless there is cause for disqualification.
The completion of a Mental Health Power of Attorney in addition to a declaration is helpful since not every decision about treatment can be anticipated and pre-planned. When choosing an agent, be sure to choose a person who can be trusted to follow your wishes as closely as possible. Keep in mind that the following people cannot legally serve as your agent: your mental health care provider or an employee of the provider, or an individual associated with a residential facility in which you are residing (unless the individual is related to you by marriage, blood, or adoption).
Legal advice specific to an individual’s situation is recommended for those who wish to consider formulating a Mental Health Advance Directive.
By Karen Kaslow, RN and Jessica Greene, Attorney