couple talking to mental power of attorneyAdvance directives are essential when planning your estate, but most do not include provisions that allow you to select an agent to make decisions regarding your mental health. Creating a mental health care power of attorney protects you, and your loved ones, in the event you become incapacitated or deemed incapable of making your own mental healthcare decisions. This becomes relevant with many age-related illnesses such as dementia and Alzheimer’s disease. One of the most frightening aspects of mental illness is its ability to strike at any time, without warning signs or family history.

What is a Mental Health Care Power of Attorney?

A mental healthcare power of attorney (POA) is a legal document granting authority to an agent of your choosing to make certain decisions on your behalf. This important estate planning tool allows you to ensure your mental health needs are attended to in the manner of your choosing now, while you are still healthy and capable of making your needs known.

You can use this POA to delineate your wishes regarding medications and drug trials, hospitalization and other care. Its language even allows flexibility to address unexpected circumstances.

Difference Between Medical Health Care POA and Medical POA

Advance directives provide your instructions for a variety of situations. The most commonly known advance directives are the living will and health care or medical POA. The living will provides instructions for end-of-life care whereas the medical POA focuses on your medical wishes should you become incapacitated (not necessarily end-of-life medical care). However, if you live in Arizona, these documents do not allow your agent to make certain decisions regarding mental health treatment.

In your mental health care directive, you can choose if you want your POA to arrange for psychiatric and psychological treatment, consent to or refuse the administration of any medication, or admit you to a mental health treatment facility.

Reasons for a Mental Health Care POA

As stated above, mental illness can strike at any time. Diseases like Alzheimer’s cause a variety of behavioral issues. What’s more is that something as simple as a fall may create a condition such as a subdural hematoma, which may radically affect your mental capacity. Certain medications, such as some antidepressants and sleep aids, have dangerous side effects that may include hallucinations.

If you refuse being admitted to an inpatient psychiatric facility due to your mental state, and do not have a mental health POA, your family may have to pursue emergency guardianship to ensure you receive proper treatment.

When to Prepare a Mental Health Care Power of Attorney

In order to be valid, a mental health POA must be drawn up and signed while the principal is still mentally healthy and able to meet the legal requirements of mental capacity. It must be notarized or witnessed by at least one individual who affirms you are of sound mind and free from duress, fraud, or undue influence.  It should also include a clause that you cannot revoke or change your POA if a doctor has determined you can no longer give informed consent.

Mental Health Care Power of Attorney

A Mental Health Care Power of Attorney is similar to a Health Care Power of Attorney in that it allows you to name a person of your choosing to make decisions for you in the event of incapacity. However, a Mental Health Care Power of Attorney only allows this person to make decisions about your mental health treatment. You may also name an alternate adult (or adults) to make these decisions if the person you name originally is unwilling or unable to act on your behalf.

You must be a legal adult, 18 years of age or older, to make a valid Mental Health Care Power of Attorney. You must also be of sound mind when you make and sign the Mental Health Care Power of Attorney. In addition, this document must be notarized.

The stipulations in your Mental Health Care Power of Attorney will take effect only when it is determined that you incapable of making decisions on your own. These decisions must be consistent with any wishes you expressed in your Mental Health Care Power of Attorney.

You should always hire an experienced lawyer to handle the document preparation when it comes to a Power of Attorney. The attorney will be able to give details on what the process and document entails.

If you are ready to enact a mental health power of attorney, let the team at Cholewka Law work with you. We are experienced in the complexities of estate planning in Arizona and can help you choose the best agent to fulfill your needs.