Is There Such a Thing as an Advance Directive for Psychiatric Patients in Virginia, DC, or Maryland?

In his first year of his residency, Dr. David Nissan, a resident in psychiatry at New York Presbyterian Hospital, worked under compassionate physicians who emphasized the importance of carefully explaining the risks and benefits of treatments to patients. On several occasions he helped patients with life threatening conditions plan for what type of treatment they would like if they became unable to make decisions on their own: whether they would like a machine to breathe for them or receive nutrition through a tube, for example. He was aware that this information is typically found in an advance medical directive, a legal document that communicates a patient’s wishes in the event that he or she is not able to decide for him or herself. He remembers thinking, “This would be a wonderful tool for psychiatric patients. If only it were so simple.”

What are Psychiatric Advance Directives?

Psychiatric Advance Directives (PADs), as Dr. Nissan describes, do exist. They are relatively new legal instruments that may be used to document a competent person’s specific instructions or preferences regarding future mental health treatment. This would be in preparation for the possibility that the person may lose capacity to give or withhold informed consent to treatment during acute episodes of psychiatric illness.

PADs are a method to promote patient autonomy, so that patients can make decisions on their own behalf and control their health care. PADs can be used for consent to or refusal of certain medications, with an explanation for the reason for those choices. (In certain circumstances, this decision can be overruled by doctors.) PADs can also be used to impart important information about a diagnosis, treatment, or response to treatment, and thereby provide a transportable psychiatric record to use in crises.

Almost all states permit some form of Psychiatric Advance Directive, which can be used to direct at least some forms of psychiatric treatment. In the past decade, twenty-five states have adopted specific PAD statutes. Below are brief descriptions of PAD statutes in Maryland, Virginia, and Washington, DC:

PADs in Maryland

Maryland’s Health Care Decisions Act allows you to appoint an agent to make decisions about your mental health treatment if you become incompetent to do so; to write instructions about how you would like your mental health care to proceed; or both. In Maryland, a PAD is known as an “Advance Directive for Mental Health Treatment”.  

In Maryland, you can write advance instructions regarding psychiatric medications and/or hospitalization. The statute says that you may, in particular: (1) identify mental health professionals, programs, and facilities that you would prefer to provide your mental health services; (2) state preferred medications; and (3) say whether you consent to your records being released to others, including other health care providers. You also have the right to refuse mental health treatment in your instructions.

Before following your PAD, your mental health care providers would not need a court to determine if you are not competent to make a certain decision. All that is required is that your attending physician, plus one other physician not currently treating you, examine you and determine that you lack the ability to understand, evaluate or communicate a decision about a proposed form of mental health treatment. The physicians must put that determination in writing.

Your providers may decline to follow your Advance Directive for Mental Health Treatment: (1) if you are considered a danger to yourself or others; or (2) if a treatment requested by you or your agent is considered by your attending physician to be medically ineffective or medically inappropriate.

PADs in Virginia

Virginia’s Health Care Decisions Act authorizes advance directives for mental health as well as other medical treatment. Virginia’s advance directive for health care allows you to convey your instructions on any aspect of your psychiatric treatment, which could include advance decisions to request or refuse medications or hospitalization. You can also specify in great detail your preferences regarding psychiatric medications and hospitalization.

The advance directive goes into effect if your attending physician and a second physician or clinical psychologist not involved in your care determine that you no longer have capacity to make decisions for yourself. Similar to Maryland, no court is needed to determine whether you are competent to make a certain decision.

Providers may decline to follow your instructions, or those of your agent, in the following situations: (1) The provider believes the requested health care is medically or ethically inappropriate; in that situation, the provider must try to find another provider who will follow the instructions; (2) The provider is “physically or legally unable to provide” the care requested; (3) The provider is “physically or legally unable to provide” the requested care “without thereby denying the same health care to another patient;”  (4) You were hospitalized or medicated under Virginia’s involuntary treatment or mandatory outpatient treatment laws and your instructions, or those of your agent, conflict with those laws.

PADs in Washington, DC

The District of Columbia’s Health Care Decisions statute allows you to appoint an agent to make mental health care decisions for you in the event that you become unable to make those decisions yourself. Additionally, the District’s Mental Health Consumers’ Rights Protection statute allows you to document instructions about your mental health treatment. These become active at any point you are unable to make your own mental healthcare decisions.

Before following a PAD, mental health care providers do not need a court to determine if you are competent to make a certain decision. All that is required is that two physicians, one of whom must be a qualified psychiatrist or psychologist, determine that you lack the capacity to understand, choose, or communicate a mental health treatment preference. The providers must document that decision in your notes.

There are two important exceptions to the general rule that your providers must follow your agent’s instructions.  First, your provider may decline to follow your instructions, or those of your agent, for “good cause”.  One example of “good cause” is that a course of action is not within generally accepted standards of psychiatric care.  Second, your instructions remain subject to the law regarding involuntary commitment and/or treatment.

To learn more about PADs, visit Duke University’s National Resource Center on Psychiatric Advance Directives.

The Self-Settled Special Purpose Trust Also Promotes Autonomy for Individuals with Mental Illness

When mentally capable individuals who are diagnosed with mental illness or addiction issues wish to reduce their financial risk, they can create a self-settled special purpose trust to control their own assets. These trusts allow clients to control their own financial destiny. The trust can be changed at any time except when the client is having an “episode,” and the trustee believes the beneficiary to be acting irrationally, for example, when someone with bipolar disorder is having a manic episode, or when someone with a substance abuse problem is abusing again.

This type of revocable trust preserves and protects client autonomy because clients create the trust for themselves and name someone they trust to be trustee to determine whether the client is acting rationally.

For more information about this type of trust, see this article from my friend and fellow elder law attorney Shawn Majette.

Now is the Ideal Time to Start Planning

Do you or a loved one have a mental illness? Or, perhaps you don’t have estate planning, incapacity planning or long-term care planning documents in place? When you or your loved ones are ready, please call us to set up an appointment for an initial consultation to create necessary documents and have peace of mind. For those who feel safer in their homes, we offer phone appointments, video conference appointments, and curbside signings (but we are still open for in-person meetings and signings for those who desire it, of course with everybody wearing appropriate face coverings):

Estate Planning Fairfax: 703-691-1888
Estate Planning Fredericksburg: 540-479-1435 Estate Planning Rockville: 301-519-8041
Estate Planning DC: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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