Mental Health Advance Directives Enhance Estate Planning

When Should You Prepare Your Estate Plan?

The basic rule is that it is never to early to begin an estate plan and certain events, such as marriage, the birth of a child, divorce, or death may require a plan to be updated. Estate planning, however, is something that many people want to avoid thinking about. In fact, many people put it off until something startles them into action. That something might be a birthday, the birth of a child, the realization of the size of an estate, a stroke, a serious illness or injury, or even the first inklings that a spouse or loved one is in the early stages of dementia.

In some cases, there may be urgency to make plans while the person has the capacity to make choices and convey his or her wishes. Estate planning in these cases is likely to include much more than a simple will. The person may also need to make significant financial and medical plans to prepare for future medical and mental health needs. Individuals who are experiencing the effects from a stroke, traumatic brain injury, or the onset of dementia, and those who believe they are at a higher risk for brain injury or dementia may want to include the preparation of a Mental Health Advance Directive in their estate planning process.  Mental Health Advance Directives can provide dignity for the person and comfort for the person’s family who knows how to respond to a difficult situation.

What is a Mental Health Advance Directive?

In 2003, Washington enacted its Mental Health Advance Directive law. A Mental Health Advance Directive is a written document that describes a person’s instructions and preferences for treatment and care during times when the person is having difficulty making decisions or communicating with others, or when the person cannot remember what decision he or she has made. It can inform treatment providers, family, and others about what treatment the person wants and does not want, and can identify an “agent” to make decisions on the person’s behalf. The law can be found at Chapter 71.32 RCW.  A Mental Health Advance Directive only goes into effect when a person is unable to make decisions or communicate decisions about his or her treatment.

The law places a number of protections around a person to prevent an inappropriate determination about his or her ability to make decisions.  Perhaps most importantly, the law presumes that an adult has capacity to make health care decisions.  In addition, a determination that a person is unable to make health care decisions can’t be made by just anybody.

A capacity determination can be made by a court, if the person or the person’s agent request a court decision. It can also be made by two health care providers or two mental health providers.  One of the two must be a psychiatrist, psychologist, or psychiatric advance nurse practitioner and one of the two must personally examine the person.  That means that a decision can’t be made just looking at a person’s chart and it can’t be made by two nurses at the nurse’s station just because a person doesn’t want to do what is easy for them.  If medical or mental health professionals are making a determination, they also have to tell the person and inform him or her of the right to a court decision.

Who Does a Mental Health Advance Directive Help?

A Mental Health Advance Directive is an effective planning tool for persons who have or are concerned about having a diminished ability to make decisions for themselves but who currently have the ability to make decisions. This population includes those who:

• Have a traumatic or organic brain injury or whose job or hobbies put them at higher risk for traumatic brain injuries;
• Are concerned about the possibility of future dementia or are facing the onset of dementia;
• Are at an increased risk for a stroke;
• Have faced mental illness issues or are concerned about the possibility of future mental health issues; and
• Are not currently facing any of these issues but want to coordinate all of their planning and cover future possibilities.

How Does a Mental Health Advance Directive Relate to Dementia?

The purpose of the law creating Mental Health Advance Directives was to help individuals control decisions relating to their mental health treatment during periods when their capacity to make healthcare decisions was unclear or lacking. The law specifically recognizes that “some mental illnesses cause individuals to fluctuate between capacity and incapacity” and is intended as a tool for a person “to express his or her choices at a time when the effects of the mental illness have not deprived him or her of the power to express his or her instructions or preferences.” (RCW 71.32.010.) Persons who are experiencing the onset of dementia or have a traumatic brain injury may also have good days and bad days and may, in fact, fluctuate between capacity and incapacity. In the case of persons in the early stages of dementia, an advance directive can help prepare them for the time when they are no longer able to make decisions, whether that time comes quickly or their condition advances more slowly.

In the context of estate planning, the Mental Health Advance Directive provides several strong advantages.

• It provides a person with dignity and control by providing a structure to think about and decide what he or she would or would not want.
• The person’s family and medical providers will know what he or she wants even if the person cannot express himself or herself.
• Treatment providers must honor what a person puts into a Mental Health Advance Directive to the fullest extent possible.
• It allows a person to authorize another to make decisions about mental health treatments through a Power of Attorney. A person with this Power of Attorney is known as an agent.
• What a person includes in a Mental Health Advance Directive will help his or her agent make decisions in unforeseen situations.

What Are the Limitations of a Mental Health Advance Directive?

The Mental Health Advance Directive is not an absolute document. Treatment providers are not required to follow a Directive when following the instructions would:

• Violate state or federal law;
• Require the treatment provider to violate medical standards; or
• Require providing treatment that is not available.

Treatment providers are also not required to follow a Mental Health Advance Directive when the person has been civilly committed to involuntary mental health treatment by a court or if the person is in jail or prison.

A person must choose whether the Directive may be revoked at times when he or she doesn’t have the capacity to make medical decisions. If a person chooses to allow his or her Directive to be revoked during those times and then revokes it, the person’s agent and medical providers must honor the revocation and are no longer bound by what the Directive says.  Once revoked, a Directive is ineffective and does not spring back into effect if the person changes his or her mind again.

How Does a Mental Health Advance Directive Work with a Living Will or Durable Power of Attorney?

A person can have a Living Will, a Health Care Directive, a Durable Power of Attorney, a Mental Health Advance Directive, and an Agent and in many cases there will be no conflict between them. The most likely conflict would come if one person has a Durable Power of Attorney for health care decisions and another person is named as the agent in the Mental Health Advance Directive. The easiest way to resolve that is to grant the same person authority as both the Durable Power of Attorney and the agent. If there is a conflict between a Mental Health Advance Directive and any other Directive the newest document will have legal priority.

Preparing a Mental Health Advance Directive during estate planning provides the opportunity to ensure that all directives, living wills, powers of attorney, and agencies are consistent and coordinated in a way that minimizes the opportunity for conflicts between documents and people.

Summary

Having a Mental Health Advance Directive enhances an individual’s estate plan because it provides a person with the ability to coordinate directives and direct their care during times when they do not have capacity to make treatment decisions. They are most useful for persons who have faced mental health issues including traumatic brain injury, those who are concerned about the possibility of future dementia or traumatic brain injury, or who are planning during the onset of dementia issues. It provides a structure for discussing issues and making decisions and is the means to ensure that those making decisions for a person follow the person’s wishes at times when he or she is unable to express them.  In addition to providing certainty and dignity for the person making the directive, the document can help the person’s family by providing a level of comfort and security during challenging times.

Mental Health Advance Directives Enhance Estate Planning