psychiatric-advance-directives

4 minute read

Guide to Psychiatric Advance Directives - What You Need to Know

What exactly is a PAD and when does it come into play? Trust & Will explains what you need to know about psychiatric advance directives.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

According to the Centers for Disease Control and Prevention (CDC), more than 1 in 5 Americans live with a mental illness. If you identify as someone who lives with a mental health condition, being prepared can be incredibly empowering. Through the lens of estate planning, a Psychiatric Advance Directive (PAD) can be a powerful tool. This comprehensive guide is designed to equip you with everything you need to know regarding PADs. It serves as your FAQ, ensuring you can make informed decisions about your mental health care. From understanding the intricacies of PADs to its application, we've got you covered.

What is a Psychiatric Advance Directive?

A Psychiatric Advance Directive (PAD) is a legal document that details a person's preferences and instructions for mental health treatment, should they become unable to make such decisions in the future due to a mental illness. This document allows patients to proactively communicate their wishes for future psychiatric care, thereby ensuring that their autonomy and preferences are respected, even during periods of severe mental health crisis.

Functioning similarly to a Living Will, PADs come into play during situations where an individual is unable to effectively communicate their treatment choices to their healthcare provider, but specifically in the context of a mental health crisis.

In such instances, the PAD serves as a guiding tool for healthcare providers, outlining the individual's predetermined choices for medications, therapies, and even hospitals and facilities. 

PADs empower individuals by granting them control over their future psychiatric care.

What is the Purpose of a Psychiatric Advance Directive?

The primary purpose of a Psychiatric Advance Directive (PAD) is to give you a voice in your care, especially in the event in which  you might be struggling to communicate your wants and needs. 

Think of it like a roadmap for your mental health care; you can lay out the specific treatments and procedures you want, and just as importantly, the ones you don't want. By doing so, you ensure that healthcare professionals understand your wishes, which can bring a sense of comfort and control during times when things feel uncertain or overwhelming. 

In simpler terms, a PAD is like a letter to your future self and your healthcare team. If there comes a time when you're not able to make decisions about your treatment, this document will speak for you. It's your way of saying, "This is what I want for my treatment and care." It's a tool that can provide guidance and reassurance for both you, your loved ones and your healthcare team. It can help make a tough situation easier to navigate and provide better peace of mind for all parties involved.

Psychiatric Advance Directive Requirements

A Psychiatric Advance Directive (PAD) generally consists of two main components: an Advance Directive and a Medical Power of Attorney. 

An Advance Directive is a written document where an individual can state their treatment preferences and decisions in case of a severe mental health crisis. This could include preferences for specific medications, therapeutic treatments, hospitals, or even preferences for non-medical care such as nutritional preferences or spiritual care requests. 

A Medical Power of Attorney is a legal document that allows an individual to appoint a trusted person (the "agent") to make health care decisions on their behalf if they are unable to do so. This person could be a family member, a friend, or a trusted healthcare provider. The agent's role is to ensure that the healthcare team sticks to the individual's expressed preferences in the PAD. The requirements to create a PAD can vary by state, but generally include being an adult (18 years or older), being of sound mind when making the PAD, and having the PAD witnessed by others. 

When Does a PAD Go Into Effect?

A Psychiatric Advance Directive (PAD) goes into effect when an individual is determined to lack the ability to make or communicate decisions about their own mental health care. This inability could be caused by symptoms of a psychiatric disorder or side effects of a treatment. It's important to note that this incapacity is often temporary and the individual may regain their decision-making ability once their condition improves.

The determination of incapacity is typically made by a psychiatrist or other qualified mental health professional. They take into account the individual's insight into their illness, their capacity to understand the nature and consequences of their health decisions, and their ability to rationally weigh the pros and cons of different treatment options. In some states, the incapacity determination may require a legal proceeding, such as a hearing before a judge, while in others, it might simply require the signature of two physicians. The specific requirements for incapacity determination and for activating a PAD can vary widely by jurisdiction, so individuals should consult with a knowledgeable legal advisor or mental health professional in their state when drafting a PAD.

Psychiatric Advance Directives vs Medical Advance Directives

Psychiatric Advance Directives (PADs) and Medical Advance Directives are both legal tools designed to communicate an individual's preferences for future treatment, should they become incapable of making informed decisions. However, there are several key differences between the two.

A Medical Advance Directive typically refers to a Living Will or Durable Power of Attorney for Health Care. It outlines an individual's preferences regarding life-sustaining measures, hospitalization, resuscitation, and end-of-life care. These directives are triggered when an individual is incapable of making decisions due to a physical health condition, such as being in a coma or having a severe brain injury. 

On the other hand, a Psychiatric Advance Directive is specifically focused on mental health treatment. It comes into play when an individual is determined by a mental health professional to be incapable of making rational decisions due to severe symptoms of a psychiatric disorder or side effects of treatment. A PAD can specify preferences for psychiatric medications, hospital admission, choice of doctor, and crisis intervention strategies. It's important to note that the triggers for these two types of directives are different; a medical crisis does not necessarily activate a PAD, and a psychiatric crisis does not necessarily activate a Medical Advance Directive. Individuals with both psychiatric and physical health concerns may wish to have both types of directives in place.

Types of Psychiatric Advance Directives

Psychiatric Advance Directives (PADs) can generally be categorized into two types: Instructional Directives and Proxy Directives. Each serves a unique purpose, providing distinct ways for an individual to maintain control over their psychiatric care during periods of incapacitation. 

Instructive PAD 

An Instructive Psychiatric Advance Directive (PAD), as the name suggests, provides specific instructions regarding the kinds of treatment the individual wishes to receive or avoid during a mental health crisis. It can outline preferences for medications, therapies, and other treatments, including the individual's comfort measures and the settings in which they prefer to receive care. The directives also allow individuals to express their wishes in terms of the interventions they deem unacceptable or intolerable. It's crucial to understand that while these directives provide a clear blueprint for healthcare providers, they must still operate within the scope of what is appropriate and legally permitted.

Proxy PAD

A Proxy Psychiatric Advance Directive (PAD) assigns a trusted individual to make mental health care decisions on behalf of the individual if they were to become incapacitated. This person, also referred to as a "proxy" or "agent," is expected to consider the individual's wishes, values, and preferences while making decisions. The scope of their decision-making powers can be broad or limited, as defined in the PAD. It's worth noting that a Proxy PAD can coexist with an Instructive PAD, providing a comprehensive strategy for guiding psychiatric care during crises. However, it's crucial to choose a proxy who understands and respects the individual's mental health preferences and can communicate effectively with healthcare providers.

Learn More About Advanced Medical Directives from Trust & Will

This guide has shed light on the concept of Psychiatric Advance Directives (PAD), providing details on both the Instructive and Proxy PAD. The former allows individuals to specify their treatment preferences during a mental health crisis, while the latter enables them to delegate decision-making authority to a trusted proxy or agent during times of incapacitation. Both forms of PAD aim to ensure the individual's preferences are respected in the management of their mental health, within medically appropriate and legally permitted boundaries. Visit Trust & Will’s guide on Advance Directives to deepen your understanding in the broader context.

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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.

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