Mental health advanced directive

For many people with mental illnesses, the capacity to make treatment decisions fluctuates over time.  Often, when they are most in need of treatment, they are least able to give informed consent to such care.  This can lead to delays in treatment and may even prevent treatment at all until an individual becomes so ill that involuntary treatment is necessary.

While a power of attorney and a mental health advanced directive both cover health care decisions, you should think of them as companion documents, not as an either/or proposition.

In Washington, one way to address this situation is to execute a mental health advanced directive that sets out what treatments you do and don’t want should you become incapacitated by mental illness.

In my July 20, 2018 post, I discussed durable powers of attorney for health care.  If you’re familiar with that type of durable power of attorney, you may be thinking “why would I want a mental health advanced directive?  I’ve already got that covered.”

While a power of attorney and a mental health advanced directive both cover health care decisions, you should think of them as companion documents, not as an either/or proposition.  In a durable power of attorney, you’re naming someone to make health care decisions for you if you can’t do it for yourself.  In contrast, your directive allows you to give specific instructions about your treatment at those times when you need mental health care but don’t have the capacity to give consent for treatment.

State law actually allows you to combine a durable power of attorney for health care with a mental health advanced directive in a single document.  I’ll talk more about this combined document a bit later in the post.

Along with addressing treatment, your mental health advanced directive can also set out a wide variety of other provisions, both pertaining to your health care and to what you wish to be done about your personal affairs while you are incapacitated.  Regarding your treatment, you can specify your preference about the types of treatment you want, including specific instructions about those treatments.  You can also refuse certain treatments.

Your directive can include a description of situations that may cause you to have a mental health crisis and suggest alternative responses to be used along with, or possibly in place of, direct mental health treatment.

A directive can also include your consent to being admitted to a mental health treatment facility for up to fourteen days, but you can change your mind after you are in the facility.  During your stay, if you say you want to be discharged (or take actions demonstrating your desire to be discharged), you must be discharged.  However, if your condition has been found to meet the criteria for involuntary treatment under RCW Chapter 71.05, the facility can refuse to release you.

As mentioned earlier, you can also give instructions in your directive about handling your personal affairs while you are incapacitated.  Among other things, you can give instructions about normal day-to-day things such as feeding the cat, watering the plants, etc.

A very important thing to keep in mind when preparing your mental health care directive is that you cannot revoke the directive when you are incapacitated unless you specifically state in the directive that you are reserving the power to revoke.  If you do give yourself the power to revoke your directive, you can revoke the entire directive or just part of it.

This revocation power could be one of the most significant decisions you’ll make when preparing your directive.  Preparing a directive means that you want control now over the treatment you get later when you’re incapacitated.  You need to be sure that you want to give yourself the ability to change your mind later, when you need treatment.

To execute an advanced directive, you have to be an adult, and you have to have legal capacity at the time you execute the document.  Your directive must be in writing and either dated and signed by you or, if you are unable to sign, dated and signed in your presence by someone you’ve designated to sign on your behalf.  The directive must also be witnessed by at least two people.

There are strict limitations on who can serve as a witness to your mental health advanced directive.  Someone cannot act as a witness if he or she is (1) someone designated to make health care decisions on your behalf; (2) a health care provider or professional person directly involved with your care when you execute your directive; (3) an owner, operator, employee, or a relative of an owner or operator of a health care facility or long-term care facility in which you are a patient or resident; (4) a person related to you by blood, marriage, or adoption; (5) someone you are in a dating relationship with; (6) someone who is themselves incapacitated; or (7) a person who would benefit financially if you undergo mental health treatment.

As mentioned above, you can combine a mental health advanced directive with a durable power of attorney for health care.  In this combined document, along with setting out your treatment preferences, you also name a person to make mental health care decisions for you when you can’t.

If you do choose to prepare a mental health advanced directive, the Washington State Department of Social and Health Services (“DSHS”) has additional information and forms that you can use.

While a mental health advanced directive is not a panacea, it does offer a way for people with mental health issues to take back at least some control over what happens to them when they are at their most vulnerable.