Legal Planning For Psychiatric Emergencies

Advance treatment directive for a someone with a psychiatric disability

The New York Times recently published a featured article on the growing use of PADs – Psychiatric Advance Directives.  Psychiatric advance health care directives allow patients with serious mental illness to specify the treatment they want to receive should they become unable to manage their medical care because they have lost touch with reality during a mental health crisis.  This legal document serves a different purpose for personalizing medical treatment than the more familiar, and similarly named, Advance Health Care Directives or AHCD.  The AHCD is frequently used by individuals to specify the extent of end-of-life medical treatment desired, while a PAD can be used throughout a lifetime.

California law does provide for the use of Psychiatric Advance Health Care Directives.  The following is a discussion on the topic from CEB’s title, California Powers of Attorney and Health Care Directives (KFC 336 C345 2008 on the shelf at ACLL or on OnLAW)

§8.7B            1.  Use of Psychiatric Advance Health Care Directive

Psychiatric AHCDs are used to set forth specific instructions or preferences of a person with capacity regarding future mental health treatment. A psychiatric AHCD can be used much like a typical AHCD.  For example, it can be used in naming an agent to make decisions and in giving instructions regarding the provision or withholding of certain medications and treatments.  However, the psychiatric AHCD specifies those treatments, medications, facilities, and doctors specific to a mental health diagnosis.  This document can be extremely helpful for someone who has been diagnosed with a mental illness such as schizophrenia or bipolar disorder but who, while on medication, has the capacity to execute an AHCD.  For an excellent review of the psychiatric AHCD’s use and for responses to frequently asked questions, see https://www.disabilityrightsca.org/publications/advance-health-care-directives-for-mental-health-care-a-trainers-manual.  For further discussion of psychiatric AHCDs nationwide, see https://www.nrc-pad.org.

For a full psychiatric AHCD form valid in California, see https://www.disabilityrightsca.org/system/files/file-attachments/508801.pdf.  Part II(a) of this form, subtitled “Statement of Individual Mental Health Care Instructions“, involves mental health treatment and begins on the page in the pdf with the footnote showing “Page 10 of 29.”

Powers of Attorney

In the past, a document that served a similar purpose as today’s AHCD was referred to as a Power of Attorney for Healthcare.  Many legal information resources include discussion on both health care and financial powers of attorney.  (See below.)

The following is a simplified review of some of the legal documents that have “Power of Attorney” in their title.  Detailed information can be found in the resources listed at the end of this post.  Some organizations, such as the Department of Motor Vehicles and CALPERS, require their own specialized Power of Attorney form.

Generally, a Power of Attorney (POA) is a legal document that you (as the “principal”) create.  It gives another person (your “agent” or “attorney-in-fact”) the legal authority to act on your behalf.  You can give your agent broad, ongoing powers, such as handling all of your finances, or limit him/her to specific actions and dates, for example selling your car while you are away.  Your agent may not represent you in court.  He or she may not write, change, or revoke your will.

Health

While state law requires certain provisions to appear in your health care directive, there is no single form in use to document your wishes.  This is the form from the California Office of Attorney General –  California Probate Code Sample Form, pdf.

By law, the California Secretary of State maintains the Advance Health Care Directive Registry as required by Probate Code §4800 which allows a person who has executed an advance health care directive to register information regarding the directive with the Secretary of State.  This website includes a form to register the AHCDR – https://ahcdr.cdn.sos.ca.gov/forms/sfl-461.pdf

Finances

If you are concerned about someone taking care of your finances should you become incapable of doing so yourself, you might want to research further a Durable Power of Attorney.  A basic form to grant a power of attorney for financial transactions is the Uniform Statutory Form Power of Attorney.  A sample (and a discussion of the legal issues) is available from the NOLO online resource or in the paper title, Living Wills & Powers of Attorney for California

Information resources

Living Wills and Powers of Attorney for California KFC 619.5 R5 .I78 NOLO (Self -Help)  Step-by-step instructions for creating financial and healthcare powers of attorney.  Electronic Access is available on the NOLO-EBSCO legal resource database.

California Legal Forms Transaction Guide KFC 68 .C32 Vol. 31, Chapter 98, “Powers of Attorney”

California Powers of Attorney and Health Care Directives KFC 336 C345 2008  Attorneys use this comprehensive source for legal interpretation and form drafting.

Research Guide,  “Power of Attorney” – https://saclaw.org/wp-content/uploads/lrg-power-of-attorney.pdf