Power of Attorney and Mental Illness

By River Braun, J.D.

Power of Attorney and Mental Illness

By River Braun, J.D.

As more light is shed on mental health issues, we are able to engage in more open discussions of what it means to live with mental illness and how we can help loved ones who are living with mental illness. One of those ways is acting as an agent to your loved one, which can be established through a mental health power of attorney. By becoming an agent for someone with a mental illness, you have the ability to make decisions for them concerning their illness based on your loved one's stated preferences.

Young woman putting arm around older woman in hospital room

What is a mental health power of attorney?

A mental health power of attorney, also called a psychiatric advance directive, is a legal document that identifies one or more individuals as an agent or agents who act on behalf of a person who is mentally ill. An agent has certain powers to make decisions on the care of another, such as types of treatment and treatment facilities. This document ideally identifies your loved one's wishes for treatment and care, set forth prior to a recurrence of mental illness. Treatment and care can include things such as:

  • Treatment facilities
  • Medications
  • Drug trial participation
  • Crisis intervention
  • Care of dependents

In many cases, a mental health power of attorney includes broad powers to act with greater flexibility in the case of unanticipated events.

 

Why is a mental health power of attorney important?

A mental health power of attorney is important to ensure your loved one receives the care he deserves and desires. It enables your loved one to declare his wishes during periods of lucidity so that if there is a recurrence, he will be treated according to his wishes.

Without a mental health power of attorney, family and friends are unable to speak on your loved one's behalf and must stand by and watch as his health deteriorates to a point that requires involuntary commitment. At that point, you and your family have no say as to where your loved one receives treatment nor can you receive confidential information about his condition.

What makes a mental health power of attorney valid?

In order for a mental health power of attorney to be legally valid and enforceable, it must meet state requirements. In most states, this form must:

  • Be drafted when your loved one is mentally stable and lucid
  • Be drafted when your loved one has the legal capacity to understand what is happening
  • State explicitly the powers of the agent
  • Become active only in the event that your loved one becomes incapacitated, as determined by a licensed psychologist or psychiatrist
  • Be revocable such that your loved one can revoke the power of attorney during a period of lucidity

Though these are very common requirements, it is important to check your state's laws or consider working with an attorney licensed in your state to ensure the validity of your loved one's mental health power of attorney.

What other issues can accompany mental health powers of attorney?

Because each state has their own laws regarding powers of attorney, some may not recognize mental health powers of attorney. Some allow one to include a "mental health declaration" in a general healthcare power of attorney. Some states limit the time under which a mental health declaration is legally valid. For these reasons, it is important to review the requirements for the state in which your loved one resides. For up-to-date information on the ever-evolving laws on mental health powers of attorney, visit the National Resource Center on Psychiatric Advance Directives for state-specific information.

Mental health powers of attorney can prevent your loved one from enduring undesired treatments and enable you to maintain involvement in their care and treatment. Be sure to research the laws in your state so you'll be able to carry out the wishes of you loved one without worry.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.