All adults are encouraged to set up a health care power of attorney or advance directive, regardless of whether they have a formal estate plan. But if you've already established standard health care directives, you may want to add one more: a psychiatric advance directive (PAD). This document is worth considering if you have a history of mental illness, your family has a history of mental illness or you want to formally memorialize your wishes in the event a psychiatric episode renders you unable to make your own decisions.
In general, a health care directive names a person to make medical decisions on your behalf in the event you're incapacitated. It will instruct your agent, health care workers and courts about your wishes for treatment. To cover all the health care bases, it's a good idea to have two documents: an advance health care directive (sometimes referred to as a "living will") and a health care power of attorney (HCPA). Some states allow you to combine the two in a single document.
An advance directive expresses your preferences for the use of life-sustaining medical procedures — such as artificial feeding and breathing, surgery, invasive diagnostic tests, and pain medication. It will specify the situations in which these procedures should be used or withheld. For example, you might instruct health care providers to withhold treatment in the event of a coma or permanent brain damage with little or no chance of recovery or include a "do not resuscitate" order.
But a document prepared in advance can't account for every scenario or contingency, so it's wise to pair an advance directive with an HCPA. This allows you to authorize a family member or other trusted representative to make medical decisions or consent to medical treatment on your behalf if you're unable to do so. An HCPA can include specific instructions to your representative, as well as general guidelines or principles to follow in dealing with complex medical decisions or unanticipated circumstances.
Many states allow generic HCPAs and advance directives to address mental as well as physical health issues. But some states limit or prohibit mental health treatment decisions by general health care representatives. Around half of the states have PAD statutes, which authorize special advance directives to outline your wishes with respect to mental health care and appoint a representative to make decisions regarding that care.
PADs may address a variety of mental health care issues, including treatment therapies and medications that may be administered, as well as therapies and medications that may not be administered (such as electroconvulsive therapy or experimental drugs). A PAD may also include:
Requirements vary from state to state. But to be effective, a PAD must be signed by you and your chosen representative, and in some states by two witnesses. Be sure to discuss the terms of the PAD with your family, close friends, primary physician and any mental health care providers. And to be sure that the PAD is available when needed, give copies to all of the above persons. Keep the original in a safe place and let your family know where to find it.
Since the need for a separate PAD is determined by state, you should work with an estate planning advisor familiar with your state's rules. Your advisor can also help ensure your other health care directives and estate documents (such as a will) are in good order.
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