Psychiatric Advance Directive (PAD)
Every person deserves to have control over the treatment they receive. It’s your body and mind, and you should be the one to decide. However, there may be times during a mental health crisis when you are unable to communicate your wishes regarding your care.
A Psychiatric Advance Directive (PAD) allows you to express your preferences for mental health care in advance. It designates someone to act on your behalf if you are unable to communicate your wishes during a crisis.
PADs are similar to living wills and other medical advance planning documents, but laws regarding PADs vary by state. For example, Kansas does not formally recognize a PAD; however, you can still create a legally binding psychiatric advance directive.
Benefits of a Psychiatric Advance Directive (PAD)
A PAD allows you to:
-Maintain your autonomy
-Protect yourself from unwanted treatments
-Help prevent the use of restraints
-Specify your preferred treatment facilities
-Guide your family and treatment team during challenging times
-Ensure you receive the appropriate level of care during a mental health crisis
Using a PAD ensures that your voice is heard and your wishes are known when you may not be able to speak for yourself.
How a psychiatric advance directive is used
A PAD serves two important purposes:
1. To provide clear instructions to emergency medical services, law enforcement, and healthcare workers.
2. To identify your healthcare agent, the person you designate to speak on your behalf. However, it’s important to note that a PAD may not be followed in every situation. Circumstances where a PAD may not be honored include:
-Conflicts with accepted practice standards
-Requested treatments that are not feasible or available
-Conflicts with emergency treatment protocols
-Legal restrictions
In cases where a treatment team deems it necessary, they may decide to commit you to a facility, overriding requests specified in your PAD. Nonetheless, your treatment team will strive to honor your preferences whenever possible.
Choosing your healthcare agent
Select someone you trust to carry out your wishes. Potential candidates include:
-A spouse or partner
-A close friend
-A sibling
-A family member
-An adult child
This person will act with your best interests in mind. They will:
-Follow your instructions in the PAD
-Discuss and review treatment options
-Change your healthcare provider if necessary
-Decide on your admission to a treatment facility
-Determine medications or treatments
You can specify as much detail as you desire in your PAD regarding your agent’s responsibilities. For example, you can restrict your agent to making only mental health treatment decisions and outline specific medications or treatments you do or do not want.
FAQs
Can I create a legally-binding psychiatric directive (PAD)?
Yes, you can create a PAD by appointing an agent. The Kansas statute titled “Powers and Letters of Attorney” allows you to designate someone to make health care decisions on your behalf if you become unable to do so. “Health care” includes mental health care. A recommended form for this purpose is called a Durable Power of Attorney for Health Care. While the form is not mandatory, it is recommended.
Can I provide advance instructions regarding psychiatric medications and/or hospitalization?
The Kansas statute does not permit you to create a standalone document for advance instructions concerning psychiatric care. However, when filling out a Durable Power of Attorney for Health Care, you can specify how you would like your appointed agent to make decisions. If you have particular matters you want your agent to communicate to your treating physicians, discussing them with your agent and documenting them on or attached to the Durable Power of Attorney for Health Care form is advisable.
Does anyone need to approve my advance instructions when I create them?
No, approval is not required. However, your form must be witnessed and signed by two adult witnesses at the same time you sign it. Witnesses must be adults who are not employees of your health care provider, relatives, or individuals entitled to a portion of your estate upon your death. Your agent cannot serve as a witness. Alternatively, you may have the form notarized.
Can I appoint an agent to make mental health decisions for me if I become incompetent?
Yes, as previously mentioned, you can appoint an agent. This agent must not be an employee of your health care provider unless they are also a relative or a member of the same religious community as you.
If I become incompetent, can my agent make decisions about medications or hospitalization on my behalf?
Yes, generally, your agent can make any health care decision you could have made, including admissions to a psychiatric hospital and refusing treatment on your behalf. However, be aware that there are exceptions to this general rule.
Must my agent make decisions based on what they think I would want (known as “substituted judgement”), or must they make decisions in my “best interests”?
The statute does not specify how your agent should act. The best way to ensure your agent follows your wishes is to have an in-depth discussion with them when you create the Durable Power of Attorney for Health Care.
Is there a rule requiring me to either create advance instructions or appoint an agent, or must I do both?
Yes, as explained above, you cannot create advance instructions alone. If you wish to establish a Durable Power of Attorney for Health Care, you must appoint an agent, while the extent to which you document your decisions is at your discretion.
Will my mental health care providers need a court to determine I’m not competent to make certain decisions before following my PAD?
No, your attending physician only needs to determine that you are incompetent to make treatment decisions at that specific time.
Does the statute specify when my mental health providers may decline to follow my PAD?
No, it does not specify this. However, your provider may decline to follow your agent’s instructions in situations where Kansas law on involuntary treatment applies or in emergencies.
How long is my PAD valid?
Your Durable Power of Attorney for Health Care remains valid until you revoke it. You may revoke it at any time by amending the document and having it witnessed in the same manner as when you created it. Alternatively, when creating the document, you may specify a different procedure for revocation if desired.
To learn more
Check out these resources:
National Alliance on Mental Illness (NAMI) www.nami.org/Advocacy/Policy-Priorities/Responding-to-Crises/Psychiatric-Advance-Directives
Mental Health America mhanational.org/creating-psychiatric-advance-directive
National Resource Center on Psychiatric Advance Directives nrc-pad.org/faqs/