Take Control of your Health Care- Consider a Psychiatric Advance Directive (PAD)

Take Control of your Health Care- Consider a Psychiatric Advance Directive (PAD)

“Competent adults have the fundamental right, in collaboration with their health care providers, to control decisions about their own health care.” See, The New Jersey Advance Directive for Mental Health Care Act.  The road of mental illness is laden with peaks of competency followed by valleys of incapacity, making continuous involvement in and control of one’s health care sometimes impossible.  In 2007, the State enacted the New Jersey Advance Directives for Mental Health Care Act, which authorizes individuals to prepare psychiatric advance directives (“PAD”), or instructions regarding the treatment and care he or she wishes to receive when in a crisis (and considered to lack capacity) to make informed decisions about treatment preferences. Once completed, an individual’s PAD may be registered with the State and given to each and every healthcare provider on the individual’s team. This step ensures that the individual’s health care provider will have access to the document in the event of a crisis, no matter where the crisis takes place.

In recent years, healthcare providers and patients alike have realized the benefits of preparing a “plan” to dictate treatment and care in advance of a crisis.  A PAD is a legal document wherein an individual can write instructions for psychiatric treatment in the event he or she is incapable to make or communicate those instructions at a future time.  Specifically, the PAD allows an individual to “chart” a course for their medical treatment that must be followed by caretakers, while also providing personal information, like typical behaviors to help identify a crisis, tips as to what to do to ease a crisis and what to avoid in order to prevent exacerbating a crisis.  These instructions can include direction on the type of treatment, medicines, facilities, alternative therapies and even refusal of a specific treatment, medication or facility.  An individual can even provide for the care of his or her minor children or other dependents during any period of incapacity.

Additionally, an individual may choose to appoint a “mental health care representative” or a trusted person, to make decisions on his or her behalf in the event he or she is unable to do so. The PAD allows the individual to limit or define the representative’s authority, including indicating whether he or she prefers the representative to act in his or her “best interests” or with “substituted judgment” (how the individual would if he or she had capacity) when the individual’s wishes are not clear.  The PAD can even authorize a representative to admit the individual to the hospital for a defined period of time if certain conditions set forth in the document were to arise.

A PAD can be drafted as a durable document, meaning that an individual in the midst of a crisis (incapacitated) cannot revoke it. Indeed, this is the most beneficial way to draft a PAD, as it provides the individual with the maximum security and control over his or her treatment wishes, as set forth during periods of capacity.   A PAD can take effect upon a legal “determination of incapacity” as defined by the State (which requires certification by a physician) or it can take effect upon the presence of a list of symptoms, set forth by the individual in the PAD itself.

It is important to note that a health care provider can decline to follow a PAD under certain conditions, namely if the instructions 1) “violate the accepted standard of mental health care or treatment”; 2) require an unavailable treatment; 3) violate a court order for treatment; or 4) “endanger the life or health” of the individual or another person.  For these reasons, it is recommended to prepare a PAD in conjunction with a health care provider to ensure that the instructions are appropriate, valid, and in accordance with the treatment plan and the individual’s wishes.

A PAD is a useful and necessary tool in the arsenal on the road to recovery from mental illness.  The document allows an individual to be front and center in his or her treatment and care at all times, even during periods of incapacity.  Additionally, drafting a PAD increases communication about treatment wishes between the individual and his or her care takers, healthcare professionals and family or friends. A PAD can provide an individual struggling with mental illness peace of mind and his or her care takers with firm directions to follow in the event of a crisis, where rational decision-making may not be possible.  Finally, a PAD is an easy (and cheap) document to create as it does not require the assistance of a lawyer (although it must be witnessed by an independent, competent adult).  Contact the Mental Health Association of Morris County for sample PAD forms.

Constantina Koulosousas, Wacks Debona Beilin & Weber

Constantina Koulosousas, Wacks Debona Beilin & Weber

CONSTANTINA KOULOSOUSAS is an attorney specializing in Elder Law and Trusts & Estates with a particular focus on the needs of Greek American families. Ms. Koulosousas works closely with several professionals in the USA and in Greece to offer her clients full service cross-border representation. She acts as representative in the U.S. for her Greek Clients in all legal matters.