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Should You Consider A Mental Health Directive?

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It is not hard for most seniors to appreciate the fact that there may come a time when a person’s mental abilities may not be as agile as they once were. Most seniors can relate to having good days as compared to bad ones. And for most, this is not a significant issue to worry over.  However, for some it may be catastrophic. Consider the following scenario which reflects a common true-to-life case.

Meet John. John is cognizant of his failing mental abilities. John is used to having good and bad days. On a good day he has good recall. He can remember all facts that make being able to navigate through life possible. During such a moment, John is having a conversation with his wife, Mary, who mentions that John ought to consider getting an inpatient psychiatric evaluation done which calls for a few days of hospitalization. John agrees with the suggestion. An appointment is made to check John into a medical facility to get the agreed upon tests done.

The day John is to go to the facility, he is having a bad day. He gets to the hospital and finds himself in unfamiliar surroundings, which aggravates his mood. When he meets with the doctor, he cannot recall discussing the admission with Mary and refuses to stay in the hospital. The hospital is unable to admit John without his permission and Mary has to take John back home. Over the next few days, John’s condition gets worse. He refuses to take his medication, refuses to eat, and is generally combative with Mary. By the time John is finally admitted, it is because he is unable to articulate his own preferences. Upon admission and after some tests, it is diagnosed that there is a chemical imbalance that is causing John’s mood swings and mental inabilities. But, he has already suffered permanent health problems due to his refusal to take medication and eat food. He is dehydrated and malnourished, which aggravates his physical health. Had John agreed to the earlier agreed-upon admission, he and Mary would have been spared much expense and grief. Had Mary wanted John to be hospitalized earlier, her only option would have been to try and seek a legal guardianship or to ask the state to subject John to an involuntary civil commitment—both alternatives that are expensive and less than dignified.

It is easy to visualize such a situation impacting a person afflicted with bi-polar disorder or schizophrenia. However, as America reaps the bounty of ever-longer life spans, seniors with dementia are routinely confronted with such situations as well. It would be wise to consider executing an advance mental health directive to give caregivers and those to whom we might give powers to make independent decisions under Durable Powers of Attorney, despite the contrary decisions of principals like John.

How would executing a Mental Health Advance Directive (MHAD) have helped John? Had John executed a MHAD, it would have given Mary the power to commit him to the mental health facility against his own directive to the contrary for a maximum of 14 days. Such an admission would have allowed the doctors to prescribe the proper medication to correct the chemical imbalance which was aggravating John’s already deteriorating mental condition. Lest John be concerned about giving up his rights, the directive would only empower Mary to have the doctors refuse to honor John’s objections over being admitted for a maximum of 14 days, after which the doctors or Mary would have to seek guardianship or subject John to the involuntary civil commitment proceedings, which have an extremely high standard.

Each person who is executing a MHAD may, without limitation, include:

(a)      Preferences and instructions for mental health treatment;

(b)      Consent to specific types of mental health treatment;

(c)       Refusal to consent to specific types of mental health treatment;

(d)      Consent to admission to and retention in a facility for mental health treatment for up to 14 days;

(e)       Descriptions of situations that may cause the principal to experience a mental health crisis;

(f)         Suggested alternative responses that may supplement or be in lieu of direct mental health treatment, such as treatment approaches from other providers;

(g)      Appointment of an agent pursuant to RCW Chapter 11.94 to make mental health treatment decisions on the principal’s behalf, including authorizing the agent to provide consent on the principal’s behalf to voluntary admission to inpatient mental health treatment; and

(h)        The principal’s nomination of a guardian or limited guardian as provided in RCW 11.94.010 for consideration by the court if guardianship proceedings are commenced.

So, a properly crafted MHAD can have as many safeguards as the person executing the document desires. Needless to say, this is not a document that everyone should execute. However, those diagnosed with bi-polar disorder, schizophrenia, or dementia should certainly consider executing this document for their own safety and the peace of mind it can bring to their loved ones who will be burdened with taking care of them.

The above material is Copywrited and Proprietary to Rajiv Nagaich, JD, LLM

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