Do You Need a Mental Health Advance Directive? Part I: What is a Mental Health Advance Directive?

By October 20, 2015 March 4th, 2020 No Comments

Keoni Xabral on Flickr Husband and wife walkOur firm can prepare the full spectrum of estate planning documents a client may need, including Wills, Revocable Living Trusts, Health Care Directives, Community Property Agreements, Memorial Instructions, General Durable Powers of Attorney and Durable Powers of Attorney for Health Care Decisions. Many of our clients, as we discuss their needs, have some basic understanding of what these documents are. But, a Mental Health Advance Directive? Understandably, very few people know what this document involves, and whether their particular circumstances call for this document to be prepared.

A Mental Health Advance Directive is governed by RCW Chapter 71.32. Specifically, RCW 71.32.020(11) defines it as “a written document in which the principal makes a declaration of instructions or preferences or appoints an agent to make decisions on behalf of the principal regarding the principal’s mental health treatment, or both . . . .”

The legislative findings, as set forth by RCW 71.32.010, are quite helpful in clarifying what the real purpose behind a Mental Health Advance Directive is:

The legislature declares that an individual with capacity has the ability to control decisions relating to his or her own mental health care. The legislature finds that:     

(a) Some mental illnesses cause individuals to fluctuate between capacity and incapacity;     

(b) During periods when an individual’s capacity is unclear, the individual may be unable to access needed treatment because the individual may be unable to give informed consent;     

(c) Early treatment may prevent an individual from becoming so ill that involuntary treatment is necessary; and     

(d) Mentally ill individuals need some method of expressing their instructions and preferences for treatment and providing advance consent to or refusal of treatment.     

The legislature recognizes that a mental health advance directive can be an essential tool for an individual to express his or her choices at a time when the effects of mental illness have not deprived him or her of the power to express his or her instructions or preferences.     

The legislature further finds that:     

(a) A mental health advance directive must provide the individual with a full range of choices;  

(b) Mentally ill individuals have varying perspectives on whether they want to be able to revoke a directive during periods of incapacity;     

(c) For a mental health advance directive to be an effective tool, individuals must be able to choose how they want their directives treated during periods of incapacity; and     

(d) There must be clear standards so that treatment providers can readily discern an individual’s treatment choices. Consequently, the legislature affirms that, pursuant to other provisions of law, a validly executed mental health advance directive is to be respected by agents, guardians, and other surrogate decision makers, health care providers, professional persons, and health care facilities.

So, as you can see, a Mental Health Advance Directive is designed to help people who currently have the mental capacity to express their choices regarding their own future mental health treatment, to in fact express those choices. Later, if the person lacks capacity due to a mental illness, the Mental Health Advance Directive may govern methods of treatment and also may appoint an agent to make these choices on his or her behalf.

Photo credit: Keoni Cabral on Flickr

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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