Advance 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.
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, inpatient hospitalization and other care. Its language even allows flexibility to address unexpected circumstances.
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 provide instructions for end-of-life care whereas the medical POA focuses on your medical wishes should you become incapacitated, for example, you are in car accident and cannot speak (not necessarily end-of-life medical care). However, if you live in Arizona, a medical POA does not allow your agent to make certain decisions regarding mental health treatment unless it is expressly stated.
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.
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, which is considered a mental health condition.
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.
The health care power of attorney is valid once it is signed, and witnessed or notarized properly based on your jurisdiction. However, your agent cannot act for you until one of the following occurs:
Unless one of the above occur, you maintain complete control of your own mental health and medical decisions.
Yes, so long as you have the mental capacity to do so. If you never gave the agent a copy, you only need to destroy the document (if you also never gave it to any medical institutions, such as a hospital).
If you already gave it to the agent or a medical provider, work with your attorney to create a revocation document, which becomes effective once it is properly signed, witnessed and/or notarized. Afterward, give copies of the revocation to anyone who had the original or copy of the HCPOA.
If you provided a copy to a medical document holding company (or some states allow the Secretary of State to hold copies of these documents), you must also file the revocation with the same.
Yes, you should review your POA every few years with your attorney to make sure it still represents your wishes and there are no legal changes needed.
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 is not related by blood, marriage or adoption. 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.
No, an attorney does not need to create this document. However, powers of attorney are complicated and involved legal documents, bestowing a great deal of power on an individual. Documents that are “simple” and do not have comprehensive provisions do not protect you, and are often not accepted by medical institutions or relied on by third parties. It is highly recommend to 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.
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 have mental capacity and be able to give informed consent. In addition, this document must be notarized or witnessed by someone who is not responsible for making your medical decisions.
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.
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. Contact Cholewka Law today to get started on your 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 mental health 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.
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).
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 is not entitled to any part of your estate. 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.
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