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Mental Health and Legal Planning

While the festive decorations go up, carols play, and warm greetings arrive from friends in the mail, there are usually reminders that the holiday season is not a happy time for everyone.  For some people, holidays are a reminder of loved ones lost or a trigger for anxiety related to finances or family.  Of course, many people suffer from mental health conditions throughout the year.  As people age, the detection and treatment of mental health conditions becomes more complicated.

According to the Centers for Disease Control and Prevention (CDC), one in five people over the age of 55 have some type of mental health concern.  Men over the age of 75 have a higher rate of suicide than any other age group.  Depression and anxiety are the most common conditions that afflict older adults.  These conditions can sometimes be so debilitating as to affect a person’s ability to maintain finances, nutrition, hygiene, and other essential functions. 

Triggers for mental illness in older adults include substance abuse, medication interactions, financial instability on a fixed budget, social isolation and loss of mobility, poor diet and chronic pain.  Although it is too early to measure its full impact, experts suspect that self-isolation and fear during the coronavirus pandemic could further impair cognitive and emotional functioning, especially among older adults who lack the technological know-how to stay connected with others. 

Detecting and treating mental health issues in older adults can be challenging because the symptoms are often attributable to other age-related health changes.  According to the CDC, older adults are more likely to report physical health problems than psychological issues.  Despite a growing acceptance by younger generations of mental illness as legitimate health problems to be treated, there remains among older adults a stigma surrounding these conditions.  They fear being judged as having a weak character.  Many older adults mistakenly believe that mental illness is a normal part of aging.

As the body ages, medications are processed differently and should be managed more closely.  Unfortunately, too many older adults have little follow-up after a visit to the doctor or ER because of limited mobility or inadequate social support. 

Adults with mental illness need holistic treatment and support, which should include protecting each person’s legal rights, wishes for treatment, and individual dignity.  A person’s estate planning should always include a plan for incapacity during the person’s lifetime, usually in the form of durable financial and health care powers of attorney.  Although these estate planning tools cover a broad range of situations in which a person may not be able to make important decisions, there is a specific tool that goes into greater depth for a person with mental illness.

A mental health advance directive allows a person to make his or her choices known regarding mental health treatment in case the person loses the capacity to make decisions.  If a person knows that he or she has a history of mental illness or is concerned that mental health treatment will be more likely in old age, the person may wish to make choices about hospitals or other health care facilities where treatment will be provided. 

The person may want certain family members or friends to be notified about treatment.  There may be certain medications that a person wants to refuse because of side effects.  If a particular diet has been conducive to good mental health, the person may want to insist on that diet.  Specific consent to electroconvulsive therapy must be given, and a mental health advance directive enables a person to give or decline such consent.

Not every treatment option can be anticipated before a crisis occurs, and the mental health advance directive includes an element of flexibility by appointing a trusted person to act as agent to make decisions once the mentally ill adult loses the capacity to do so.  In addition to listing preferences for mental health treatment in the advance directive, the older adult would be wise to spend some time discussing with agents how the older adult would like to be treated in the event of a mental health crisis. 

Although mental illness can be more complicated in older adults, anyone who is 18 years or older may execute a valid mental health advance directive.  Even if the person is experiencing the symptoms of mental illness, the person may create this legally enforceable document as long as the person has not been declared incapacitated by a court or placed into an involuntary mental health commitment.  The mental capacity required to create an advance directive is simply the basic ability to understand a diagnosis and to understand the risks, benefits, and alternative treatments for the mental health condition. 

Each person is presumed under Pennsylvania law to have the capacity to make a mental health advance directive.  When the document becomes the guide for treatment will depend on a determination that the person has lost the capacity to make decisions.  Under Pennsylvania law, that determination must be made by a psychiatrist and one other mental health professional.  As with any kind of estate planning, it makes sense to have an elder law attorney draft the plan in a way that protects against challenges in court by family members who have different ideas about the treatment to be provided and the place where that treatment will occur. 

As we enter the joy of the holiday season, however subdued it may be this year by quarantines, this is a good time to be mindful of those whose mental health may be susceptible to a crisis.  Remember the older people who will not fill a prescription or pick up groceries for fear of contracting the coronavirus.  Consider a phone call to the person who may be alone and lonely.  For those who believe Christmas marks an occasion of hope and the arrival of a Savior, find opportunities to be the source of hope for a struggling person.  There are medical and legal solutions to mental health problems, but each of us can give the life-saving gift of connection.

Patrick Cawley, Attorney