If you’ve heard the term “advanced directive,” you probably associate it with end of life—specifically, a medical advance directive, or MAD. A medical advance directive comes into play in the event you become incapable of making medical and other decisions on your own behalf. Under those circumstances, you can specify the kind of treatment you would choose to receive or not receive, and you can designate an advocate or agent to make decisions on your behalf (power of attorney).
Psychiatric advance directives (PADs) are similar. They’re legal documents making clear the kind of mental health treatment you would choose in the event an acute psychiatric crisis renders you incapable of communicating those wishes. These documents also allow you to name an advocate or agent to make decisions on your behalf. In this way, people with mental illness can preserve their autonomy.
More than two dozen states have laws creating PADs.
In Pennsylvania, you can create a legally binding psychiatric advance directive. Title 20, Chapter 28 of the Pennsylvania Consolidated Statutes allows you to write instructions for your psychiatric treatment in the event you are incapable of making or communicating those instructions.
In Pennsylvania, the document on which you record your instructions is called a Mental Health Declaration. The statute also allows you to appoint an agent to instruct mental health professionals on your behalf. This is called a Mental Health Power of Attorney. You can choose either, or both. Pennsylvania Protection and Advocacy has published a helpful set of instructions for consumers, including forms. These forms are not mandatory but are recommended.
You may use a Mental Health Declaration to express any wishes you have about your mental health treatment. That includes refusal of mental health treatment. The Pennsylvania Protection and Advocacy instructions provide a detailed explanation.
Among the 25 states that have statutes legally recognizing psychiatric advance directives, there can be a good deal of variation. In some cases, for example, states specify the use of a particular form. In others, the state provides a form, but doesn’t require that people use that one. In still others, states specify no particular PAD format at all. Some states have precise requirements as to how PADs should be completed. For example, two witnesses might be required, and the form might need to be notarized. But again, there is no consistency. Of the states that don’t specifically provide for psychiatric advance directives, there’s considerably more variation.
In Pennsylvania, your instructions must be signed by two witnesses. You are presumed competent to make a Mental Health Declaration, unless you are found to be incapable of making mental health decisions or have been committed under involuntary commitment laws. In other words, you must be well when you make a psychiatric advance directive.
In addition, you may use a Mental Health Power of Attorney to name any adult with capacity as your agent. (The exception: An employee of your mental health provider may not act as your agent unless he or she is related to you by blood, marriage or adoption.) If you become incompetent, your agent has the power to make any or all decisions related to your mental health or related decisions—for example, decisions regarding the care of your children during any time when you are incompetent.
You can also limit your agent’s authority to make certain types of decisions. Your agent may never consent on your behalf to psychosurgery or termination of your parental rights. If you wish your agent to be able to be able to consent on your behalf to electroconvulsive therapy (ECT) or experimental procedures on your behalf, you must say so explicitly on your form. Otherwise, your agent will not have that authority. For more information, see Protection and Advocacy’s instructions.
Your agent must make decisions based on how he or she thinks you would make them.
Alternatively, you can specify when you want your Mental Health Declaration or Power of Attorney to take effect—for example, by naming an event or behavior that you know occurs when you are incapable of making your own mental health decisions.
Making a new Declaration automatically revokes your old one.
If you appoint your spouse as an agent, he or she is no longer considered a valid agent if you become divorced or legally separated after you wrote the document. In that situation, you would need to amend the document to name another agent.