An Advance Directive for Mental Health assures that your wishes about mental health treatment will be carried out if you lose your mental capacity. It is a legal document that appoints a person (a Proxy) to make decisions about treatment for mental issues if you become mentally incompetent and unable to make such decisions for yourself.

Advance Directives for Mental Health are controlled by state law. For example, state law determines what is to be included in the document, how it is executed, and how it can be revoked. In many states, mental health directives can be included in advance directives which relate to your physical health care so there is no need for a separate document. In some states, a separate document is required.

You must be "competent" (mentally okay) at the time you execute the document.

Before executing an Advance Directive for Mental Health, choose a person you trust to carry out your wishes even if there is push back from other family members or the medical establishment. Tell your proxy your general thoughts, as well as your thoughts about specific treatments and facilities if you have them. Also let your proxy know about our following article if needed: How To Enforce A Living Will And Other Advance Directives. 

Like other advance directives, Advance Directives For Mental Health are free. There is no need to engage a lawyer to create an Advance Directive for Mental Health or to oversee its execution.

For more information about these subjects, including a link to the law in your state, see:

• Advance Directive for Mental Health Compared To Advance Directives For Healthcare
• Types of Advance Directives For Mental Health  
• Proper Execution of Advance Directives for Mental Health 
  
• Mental Competence: What It Is And How It Is Proved 
  
• How Mental Health Proxies Make Decisions  
  
• Revocation Of An Advance Directive for Mental Health  
  
• How To Choose A Proxy For Mental Health Decisions
  
• What To Discuss With Your Mental Health Proxy
  
• State Forms And Laws About Mental Health Advance Directives
  
• How To Enforce A Living Will And Other Advance Directives. 
  

NOTE: Also consider executing one or more of the various types of advance directives that relate to health care, and a Durable Power Of Attorney which governs your finances. 

An advance directive for healthcare permits you to keep in control of your healthcare even if you become unable to communicate.

The two types of documents are similar in that they only take effect when you are unable to make a decision.

The main differences are:

• Advance directives for health care generally only come into play at end-of-life. Directives for mental health can be used at any time if you become mentally incapacitated.
• You have an absolute right to decide what health care you do or do not want. With mental health, the extent of the right and the protection it provides from forced treatments vary from state to state. As a general matter, your instructions cannot limit the state’s authority to take you into protective custody, or to involuntarily admit or commit you to a treatment facility.
• Every state has enacted some form of advance written health care directive law which is intended to provide a mechanism for clearly and formally expressing health care choices.  Many states have enacted laws about mental health care directives. In the states where there is no specific law about mental health care directives, it is generally assumed that health care directives also can include mental care directives. (For more about state laws, see State Laws Which Govern Advance Directives, below.)

NOTE: Depending on the law in your state, a healthcare and mental health directive may be combined into one document.

There are three types of Advance Directives for Mental Health:

• “Instruction directives” which provide specific information and treatment about what you may or may not want to happen if you lose mental capacity to make those decisions on your own. These are similar to “Living Will” advance directives for health care. 
• “Proxy directives” which appoint a person known as a proxy to act for you if you lose mental capacity to make your own decisions.  The document does not take effect until the individual is determined to be incapable. When that happens, the agent’s authority “springs” into effect.  These forms are similar to Healthcare Power of Attorney.
• A combination form which combines instructions with the appointment of a person to act in your place as a proxy. 

Virtually every state requires some degree of formality when executing an advance directive. For instance, that the directive be in writing, and that it be witnessed by one or more witnesses and/or a Notary Public.

The person you appoint as Proxy may or may not have to agree in writing to accept the position.

A lawyer is not needed to create or execute an Advance Directive for Mental Health.

To learn about the formality required in your state, see  www.nrc-pad.org . Click on “State By State Info”.

Mental competence is basically that you are mentally okay at  the time in question. For example, that you understand the nature and extent of your assets and what would be "normal" for you to do with them (for example, leave them in a will to a spouse.) 

Mental competence comes into play at two different times with respect to Advance Directives for Mental Health. 

• The first is when you execute the document. The question becomes: were you mentally competent to execute the document(s) when you did? If there is a question, competency is generally determined by interviewing people who were close to you at the time you executed the document. You can limit the possibility that competence will be questioned by obtaining an affidavit from your doctor about your mental condition and storing it with your advance directives.
• The second is when someone attempts to exercise an advance directive for mental health. In this case, lack of mental competence triggers the ability of someone else to make decisions on your behalf. This determination is usually made by one or more treating doctors.

There are two alternative guides for proxies to make mental health decisions for a mentally incompetent person:

• “Substituted judgment”: Substituted judgment is the proxy makes a decision based on what the proxy thinks the principal (the incompetent person) would have wanted. The proxy gets this information from the document appointing the proxy if it is included. The proxy also gets this information from discussions with the principal.
• “Best interest”: Best interest judgment is when the proxy makes a decision on what he or she thinks is the best interest of the mentally incompetent person. This may lead to decisions which the now mentally incompetent person would not have wanted. (Some state laws require the “best interest” test when making a decision despite the wishes of the person who executed the document.)

The laws generally require that health care providers follow the proxy’s instructions when acting under an Advance Directive for Mental Health.

An Advance Directive for Mental Health can be revoked by the maker at any time. Generally an Advance Directive is revoked by ripping it up. For safety, also inform everyone who may have received a copy.

Some states provide specific requirements for revocation. To learn about the formality required in your state, see  www.nrc-pad.org . Click on “State By State Info”.

NOTE: An Advance Directive for Mental Health generally cannot be revoked after the maker becomes legally incompetent. 

When deciding who to ask to be your Proxy for mental health decisions, consider:

• The person's age.
  • You do not want someone who cannot make a legally binding decision (say under age 18).
  • At the other extreme, a person of advanced age may not be here to make decisions when needed.
• The person's mental and emotional ability. Preferably, a Proxy should be someone who:
  • Can understand what is happening and the alternatives.
  • Can apply your wishes to the situation.
  • Can make objective decisions even when there is a great deal of emotion involved.
  • Knows you and your wishes.
• How comfortable you are discussing these issues with the person.
• Whether the person respects your right to receive the level of treatment that you want, even if your wishes differ from the person's own wishes in a similar situation.
• Whether the person has a financial interest in whether you are declared mentally incompetent.
• Whether the person is strong and assertive enough to enforce your wishes should there be a conflict:
  • Without being intimidated by medical professionals. (Can he or she shout at a doctor if necessary?)
  • Possibly even against the opinions of other family members.
• Whether the person will be available and accessible to you and your medical providers, preferably in person or at least by phone.
• As a practical matter, it is wise to name the same person as proxy for mental health decisions as you do to be proxy for health care decisions so there is no conflict. It doesn't matter whether a person you give authority to concerning your financial matters is the same - these are two different issues.             

NOTE:

• In some states, if you appoint a spouse as a Proxy, the spouse's right is automatically terminated in the event of a divorce or legal separation, unless you provide to the contrary in the Advance Directive for Mental Health.
• Be sure to discuss your wishes with your Proxy.  

At the least, a discussion with your Mental Health Proxy (and alternate Proxy) should include your thoughts about mental health treatment in general. A general discussion will help the Proxy fill in the blanks when matters are not black and white.

Also consider telling your thoughts about:

• Treatment preferences.
  • Keep in mind that consenting in advance to a particular medication or treatment does not mean your doctor will prescribe that treatment or drug unless it is appropriate treatment at the time you are ill. 
  •  Consent only means that you consent if it is a suitable choice at that time within the standards of medical care.
• Choice of treatment facility. For example, if you have a preference for a certain facility, or bad feelings about a certain facility.
• Medications.
  • If there is a particular medication you do not want, let your proxy know why. It will help in making other decisions as well.
  • If you choose not to receive any medications, keep in mind that new medications may come along that do not have whatever effect you may be concerned about.
• Electroconvulsive Therapy (ECT)
• Entering into an experimental study (a clinical trial.)

Laws governing Advance Directives for Mental Health vary from state to state.

State by state information about Advance Directives For Mental Health is available at National Resource Center On Psychiatric Advance Directives’ web site: www.nrc-pad.org . Click on “State By State Info”.

The web site includes:

• Information about the law in each state
• Answers to commonly asked questions
• Links to free forms.

NOTE: Unlike questions relating to treatment for physical health where you are in total control, there are instances with respect to mental health that the state has a right to make decisions without considering your wishes. An advance directive for mental health has no effect in those situations.