Taxation with Representation

Most people know that you can (and should) have a Power of Attorney (“P.O.A.”) for your financial affairs and health care. But did you know that you can create a P.O.A., a/k/a advance directive, customized to your unique mental health needs?

Some states have specific statutes for mental health advance directives, and other states include them in their existing statutes addressing health care more broadly.  For example, in West Virginia, mental health is not provided for separately but is included in the state’s overall medical health law governing living wills and medical powers of attorney, being WV LEGIS S.B. 470 (2022), 2022 West Virginia Laws S.B. 470 (West's No. 83).  However, in Pennsylvania, mental health advance directives are separately governed under 20 Pennsylvania Consolidated Statutes Chapter 58.

This document goes by many other names, such as Mental Health Power of Attorney and Psychiatric Advance Directive. Mental health advance directives are effective upon an individual's disability or loss of competency.

A mental health advance directive is useful if an individual has a history of mental illness. Mental health advance directives allow an individual, the Principal, to make clear numerous things to providing for their mental health and treatment preferences, such as:

• Appoint an Agent – Appointing an Agent and successor Agents to make mental health treatment decisions for the Principal.
• Describe the Principal – Describe what the Principal is like when they are not in a crisis, as well as symptoms which may indicate that the Principal may be in a crisis.
• Contacts – List family and/or friends to contact when the Principal is in a crisis.
• Current Treatment – Set forth the Principal's current treatment plan and team.
• Medical History – History of providers and prior treatments.
• Preferred Treatment – Preferred treatment activities that help or hinder the Principal’s recovery.
• Medications – Authorizing/restricting the Agent’s authority to consent to the use of specific medication and dosages.
• Electroconvulsive Therapy (ECT) – Authorizing/restricting the Agent’s authority to authorize ECT. 
• Choice of Facility & Providers – Preferences for psychiatric treatment facilities and providers that the Principal does and does not want to be admitted to and/or be treated.
• Experimental Studies & Drug Trials – Authorizing/restricting the Agent’s authority to consent to authorize participation in experimental studies and/or drug trials.

Most states require medical professionals to comply with mental health advance directives to the greatest extent possible. However, states do generally allow medical professionals to consider traditional medical standards of care and practices, availability of the treatment requested, and relevant laws.

In order for a mental health advance directive to be valid, the Principal must be at least 18 years of age or an emancipated minor and not incapacitated. The individual must not be subject to a guardianship order or currently subject to involuntary commitment. The document must also be dated, signed by two (2) witnesses and notarized.  

If you or a loved one are in need of a mental health advance directive, visit the Bowles Rice website or connect with one of our experienced estate planning attorneys today.