Power of Attorney & Mental Illness

By Robin Elizabeth Margolis

One way you can help a relative or friend living with mental illness is to become his agent through the creation of a mental health power of attorney. A mental health POA is a legal document that makes you a substitute decision maker in situations where your loved one is unable to make treatment and self-care decisions due to a recurrence of mental illness. The mental health POA contains language reflecting your loved one's treatment preferences.

Mental Health POA

A mental health POA is a written declaration by your mentally ill loved one, known as the principal, granting certain powers to you as his agent, namely the power to make decisions carrying out his wishes on many issues that exist during an episode of mental illness recurrence. Ideally, the mental health POA contains your loved one's wishes about medications, hospitalization in particular facilities, participation in drug trials, desirable types of crisis interventions, temporary child custody, and any other concerns that have come up during past illness recurrences. It also typically contains language giving you flexibility to deal with unexpected circumstances.

POA Importance

Mental health POAs are important in ensuring your loved one gets effective care. Without a mental health POA, family members and friends stand by helplessly when a loved one experiences an episode of mental illness, unable to intervene until their loved one's condition deteriorates severely enough to meet state law standards for involuntary commitment and treatment. A mental health POA is also important because it can ensure you know your loved one's wishes in advance and have the authority to carry them out.

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Valid POA

A valid mental health POA must meet certain standards. It should be drawn up and signed when the principal is mentally healthy and lucid. He must meet the legal requirements of capacity and willfulness, possessing the mental ability to understand the document and to intentionally and consciously sign it for the purposes stated in the POA. The POA should explicitly state that your powers as an agent will not be activated until your loved one has been deemed incapacitated, typically by a licensed psychiatrist or psychologist. The POA will also contain a revocation clause, allowing your loved one to revoke the POA during a time when he is lucid, if he wishes to appoint a different agent or does not want a POA anymore.

Other Issues

Mental health POAs and other types of psychiatric advance directives were introduced in the 1980s. States are gradually enacting laws to recognize mental health POAs, but you may wish to check your state's laws for their current legal status. It is important to make sure your loved one's mental health POA conforms to your state's requirements for validity. The National Resource Center on Psychiatric Advance Directives maintains links to the evolving state laws on mental health POAs.

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Medical Situations That Require a Durable Power of Attorney for Health Care

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The Louisiana Statute on Durable Power of Attorney

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