Including Mental Health Directives in Your Estate Plan

In anticipation of potential incapacitation, individuals commonly include provisions in their estate plans to address physical ailments, empowering designated agents to make crucial medical decisions on their behalf. This typically involves the incorporation of health care powers of attorney or advance directives.

However, for individuals with a familial history of mental illness, it is equally imperative to prepare for scenarios where mental health concerns may render them unable to participate in decisions regarding their treatment. In such instances, a psychiatric advance directive emerges as a pivotal tool.

Incorporating Health Care Directives

To comprehensively address healthcare contingencies, it is advisable to establish two primary documents: an advance health care directive, often referred to as a "living will," and a health care power of attorney (HCPA). Certain jurisdictions permit the consolidation of these documents into a singular instrument.

An advance directive delineates an individual's preferences concerning the employment of life-sustaining medical interventions, encompassing procedures such as artificial feeding and ventilation, surgical interventions, diagnostic tests, and pain management. Despite its utility, an advance directive may not account for every conceivable circumstance, underscoring the importance of coupling it with an HCPA. This designation empowers a trusted individual, typically a spouse or designated representative, to make medical decisions or provide consent for treatment on behalf of the individual when they are unable to do so. Specific directives or overarching principles can be outlined within the HCPA to guide decision-making amidst complex medical scenarios or unforeseen developments.

The Role of Psychiatric Advance Directives

While many states permit conventional HCPAs and advance directives to encompass both physical and mental health considerations, some jurisdictions impose limitations on mental health treatment decisions made by general healthcare representatives. Approximately half of the states have enacted statutes pertaining to psychiatric advance directives, enabling individuals to formulate specialized directives delineating their preferences concerning mental health care and appointing representatives to oversee such decisions.

A psychiatric advance directive may address various facets of mental health care, including preferred healthcare facilities or providers, permissible treatment modalities and medications, exclusionary treatments such as electroconvulsive therapy or experimental pharmaceuticals, overarching values or principles guiding mental health care decisions, and the designation of a representative authorized to act on the individual's behalf regarding mental health care decisions in the event of incapacitation.

Compliance with statutory requirements is imperative for the efficacy of a psychiatric advance directive, typically necessitating signatures from the individual and their appointed representative, and, in some jurisdictions, endorsement by two witnesses. Engaging in discussions regarding the terms of the psychiatric advance directive with family members, close associates, physicians, and mental health care providers is strongly advised.

Mitigating Concerns

For individuals apprehensive about potential mental health challenges and keen on incorporating such considerations into their estate plans, exploring the option of a psychiatric advance directive is paramount. If available, individuals should consider the adoption of such directives within their estate planning framework. Alternatively, exploring the utilization of generic advance directives and HCPAs to address mental health care is advisable in jurisdictions where specialized psychiatric directives are unavailable.