Frequently Asked Questions
What are the advantages of a psychiatric advance
directive?
If you expect to need mental health treatment in the future and believe
that you might be found incompetent to make your decisions at that time:
- An advance directive empowers you to make your treatment preferences
known.
- An advance directive will improve communication between you and
your physician. It can prevent clashes with professionals over treatment
and may prevent forced treatment.
- Having an advance directive may shorten your hospital stay.
Will my psychiatric advance directive
be legally binding?
While advance directives for health care have been around a long time,
their use for psychiatric care is a very new area of law. We
do not yet know how courts will deal with them, especially when safety
issues arise. State laws vary and it is possible that part
or all of this document will not be effective in your state. However,
many mental health consumers who are now using these documents find that
an advance directive increases the likelihood that doctors, hospitals
and judges honor their choices.
Please note that these template forms do not constitute legal advice.
Before you assume that the advance directive you create using this form
will be legally valid in your state, you should consult a lawyer.
Where can I get legal advice about
advance directives in my state?
Your state Protection and Advocacy System (P&A) may be able to tell
you about your state's requirements or refer you to a lawyer who can.
For
the name and number of the system in your state, check the state
advocacy links on this site, visit the website of the National
Association of Protection and Advocacy Systems or
call NAPAS at 202-408-9514. The Bazelon Center is not able to respond
to individual inquiries.
Additional information is available from the following:
- For an analysis
of state statutes relating to advance directives for mental health
care, see Robert Fleishner's article.
- A
bibliography of cases and materials on advance directives
for people with mental illness.
- Two articles on Advance Directives are available on the National
Empowerment Center website: "Making
Advance Directives Work for You," by Daniel Fisher, M.D., Ph.D.
and "Advance
Directives Are What You Make Them," by Xenia Williams.
- California Protection and Advocacy, Inc. has "Advance
Health Care Directives" on its website (also available en
español).
- In New York, the Resource
Center provides training, educational materials and technical
assistance to consumers, survivors and providers in New York. The
center's Advance Directive Training Project is designed to provide
training to recipients of mental health services (in particular,
those
who might be impacted by involuntary outpatient commitment under
New York's Assisted Outpatient Treatment Law) in developing and implementing
advance directive documents for use when they are unable to make
their
own health care decisions. The Resource Center website includes
information about the use of psychiatric advance directives in New
York, along with sample forms.
- The New York State
Commission on Quality Care also has information about mental health
care advance directives on its website.
- In New York, the Office of Mental Health Bureau of Children and
Families has been working with consumers to develop the "Prime Directive
Initiative," the goal of which is to give young people a voice in
their treatment and service planning. They are developing two documents,
"My Prime Directive Journal" and "My Prime Directive." The Journal
is designed to inform youth of some of the choices they might want
to think about for their self-care and the Prime Directive is a place
to record what they need from others. It was announced in June 2001
that the documents, which are designed for use by consumers who will
decide whether to share them with others, will be available soon.
More information is in OMH Quarterly,
June 2001, Vol. 7, No. 1.
- North Carolina has a law governing "Advance Instructions for Mental
Health Treatment" (AIMHT), in addition to its laws on living wills
and general health care power of attorney documents. Many have found
this separate statutory scheme problematic. Some attorneys in the
state advise clients to incorporate mental health treatment powers
in a general health care power of attorney to minimize potential problems
with, for example, automatic expiration, revocation rules, witnessing
requirements and ambiguities in a provider's obligation to comply
with advance instructions. An analysis of the law and sample forms
are available in Schwab, Carol, "A
Critical Analysis of North Carolina's Advance Instruction for Mental
Health Treatment," The Forum for Family and Consumer Issues 3.1
(1998) (March 7, 1998).
- Ohio
Legal Rights Service (the protection and advocacy system)
has on its website information about "Advance
Directives for Health Care" and a form for a "Durable
Power of Attorney for Health Care and Declaration of Treatment Instructions."
- The Oregon Advocacy Center (the state's protection and advocacy
system) has produced a guide for consumers and families on the state's
mental health law, which includes information
on a "Mental Health Declaration," which can include decisions
on medications, ECT and hospitalization, under certain circumstances.
- Advocacy Inc., the Texas P&A, has information on its website about
how to make a Declaration
for Mental Health Treatment under Texas law, including sample
forms.
- The West Virginia Mental Health Consumers Association has a Toolkit
on Advance Directives for consumers, family members and providers.
Have any courts upheld the validity of psychiatric
advance directives?
Permitting people who are not mentally ill to engage in advance planning
through advance directive instruments on a wider basis than people with
mental illnesses raises significant issues. To date one federal court
has addressed such an issue. A Vermont law allows doctors to go to court
to nullify mental health provisions in a durable power of attorney/advance
directive if the treatment choices made by the agent do not result in
improvement of the declarant's condition. In October 2001, a federal Magistrate
Judge ruled that this provision is discriminatory and violates the Americans
with Disabilities Act. The decision is Hargrave v. State of Vermont,
No. 2:99-CV-128 (D. Vt. Oct. 11, 2001).
See a PDF file of the decision. You
will need the
free Acrobat Reader to view and print these files.
The plaintiff, Nancy Hargrave, had been diagnosed with a serious mental
illness. She was involuntarily medicated, in direct contravention of her
wishes expressly stated in her Durable Power of Attorney for Health Care.
At issue in the case was whether the State of Vermont had the right to
override a durable power of attorney with involuntary psychiatric medication
in a non-emergency situation, thereby depriving individuals with mental
illnesses from executing a durable power of attorney for health care that
is afforded the same recognition and enforcement as the advance directives
instruments executed by people who do not have mental illnesses.
Do I have to appoint an agent?
That depends on the law in your state. In some states, you may set up
an advance directive without appointing a person to act for you. In most
states, however, an advance directive for psychiatric care is only valid
if you have named an agent. The Bazelon Center's study of advance directives
suggests that these tools are much more likely to be honored when an agent
has been appointed. We strongly urge consumers to name an agent whenever
possible.
If you appoint an agent, it should be someone you trust. You can direct
your agent to present the choices you have expressed in your advance directive.You
can also authorize him or her to make other decisions about your care
that are not in your directive. Or you can appoint an agent without giving
any written instructions, but if you do this, you should clearly explain
what your wishes are so he or she can advocate effectively on your behalf.
The template includes a provision (item 5 in Section
II) that your agent's decisions about mental health treatment would
prevail even if a court appoints a guardian or conservator for you.
Does the document cover health care too?
No. The document you produce with these template forms will be an advance
directive for mental health decisionmaking only; it will not cover decisions
about other medical or surgical treatment. It is a good idea to have an
advance directive for health care as well, stating your preferences about
emergency medical treatment. Forms to create one are available from most
hospitals and health agencies. A
form for New York State can be downloaded.
How do I get and use the templates?
We created the advance directive as six separate template forms rather
than one, in part because it is designed for the WorldWide Web and is
easier to print or download as a series of smaller "pages." The separation
also makes the document more flexible. The only required sections are
I, your statement of intent, and VI,
the signature page—and in states that require an agent, II,
the appointment of an agent. The other three templates are optional
(though without at least one, you wouldn't have a directive), for you
to express your preferences about hospitalization
and treatment (III), about notification and
visitors if you are admitted to a psychiatric facility (IV) and about
the circumstances under which you can suspend the
directive (V).
When we asked several mental health consumers to test the templates,
it took them between 45 and 75 minutes to complete all six sections. Completing
these forms is likely to take you under two hours.
Print this webpage for your future reference. Then go to the sections
on the list of templates and print or download
each one you wish to use.
- It's easy to print the various forms and complete them with a pen.
While each document is on your screen, use the "print" button on your
browser.
- If you prefer to edit the forms on a computer, you can download
them with the "save as..." command on your browser's "File" menu.
The text will be in ASCII format, with codes in the web language
called
HTML. If you have an HTML editor like Macromedia Dreamweaver, Adobe
GoLive or Microsoft Frontpage, you can use this text to edit the
forms
so they will look much as they did on the internet. Otherwise, you
can delete all the HTML codes and import the ASCII text into your
word processor, formatting it however you wish.
Now proceed to the section with directions for
using the forms.
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