Health & Wellness Portal
| Interactive E-Learning...Not Just Content Online Build Your Own Wrap© “Build Your Own WRAP®” is a web- based recovery tool, developed in partnership with Dr. Mary Ellen Copeland. This valuable service will be offered here for Texas USPRA members and non-member subscribers. Key features: Develop, personalize and change a WRAP online Includes an introductory online course The online WRAP can be printed or sent via e-mail by the user Special version is available for military personnel and veterans © 2008 Essential Learning. All rights reserved. |
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| Texas Advanced Directives For a comprehensive set of resources on psychiatric advance directives, see The National Resource Center on Psychiatric Advance Directives. If you are concerned that you may be subject to involuntary psychiatric commitment or treatment at some future time, you can prepare a legal document in advance to express your choices about treatment. The document is called an advance directive for mental health decisionmaking. Forms for Creating an Advance Psychiatric Directive A. Directions for using the forms. Part I. A statement of your intent in creating an advance directive for mental health care decisionmaking. This emphasizes your strong desire that providers respect your right to influence all decisions about the your care. Part II. This form lets you name another person to make decisions for you if you are determined to be legally incompetent to make your own choices. Also, your instructions about the circumstances under which you can change your agent and who should be appointed your guardian if a court decides to name one. Part III. Your instructions about hospitalization and alternatives to hospitalization, medications, electroconvulsive therapy (ECT), emergency interventions (including seclusion, restraint and medication) and experimental studies or drug trials. Part IV. Your instructions about who should be notified immediately if you are admitted to a psychiatric facility, who should be prohibited from visiting you and who should have temporary custody of your child(ren). Part V. Here you may choose whether or not you will have the right to suspend or terminate your advance directive while you are incapacitated, if allowed by the law in your state. The section includes space for any other instructions about mental health care. Part VI. Signature page, on which you and two witnesses sign the advance directive before a notary, after you have filled in the blanks and made any changes you wish. Frequently Asked Questions What are the advantages of a psychiatric advance directive? Will my psychiatric advance directive be legally binding? Where can I get legal advice about advance directives in my state? Have any courts upheld the validity of psychiatric advance directives? Do I have to appoint an agent? Does the document cover health care too? How do I get and use the templates? What are the advantages of a psychiatric advance directive? If you expect to need mental health treatment in the future and believe that you might be found incompetent to make your decisions at that time: An advance directive empowers you to make your treatment preferences known. An advance directive will improve communication between you and your physician. It can prevent clashes with professionals over treatment and may prevent forced treatment. Having an advance directive may shorten your hospital stay. Will my psychiatric advance directive be legally binding? While advance directives for health care have been around a long time, their use for psychiatric care is a very new area of law. We do not yet know how courts will deal with them, especially when safety issues arise. State laws vary and it is possible that part or all of this document will not be effective in your state. However, many mental health consumers who are now using these documents find that an advance directive increases the likelihood that doctors, hospitals and judges honor their choices. Please note that these template forms do not constitute legal advice. Before you assume that the advance directive you create using this form will be legally valid in your state, you should consult a lawyer. Where can I get legal advice about advance directives in my state? Your state Protection and Advocacy System (P&A) may be able to tell you about your state's requirements or refer you to a lawyer who can. For the name and number of the system in your state, visit the website of the National Disability Rights Network or call NDRN at 202-408-9514. The Bazelon Center is not able to respond to individual inquiries. Additional information is available from the following: For an analysis of state statutes relating to advance directives for mental health care, see Robert Fleishner's article. A bibliography of cases and materials on advance directives for people with mental illness. Two articles on Advance Directives are available on the National Empowerment Center website: "Making Advance Directives Work for You," by Daniel Fisher, M.D., Ph.D. and "Advance Directives Are What You Make Them," by Xenia Williams. California Protection and Advocacy, Inc. has "Advance Health Care Directives" on its website (also available en español). In New York, the Resource Center provides training, educational materials and technical assistance to consumers, survivors and providers in New York. The center's Advance Directive Training Project is designed to provide training to recipients of mental health services (in particular, those who might be impacted by involuntary outpatient commitment under New York's Assisted Outpatient Treatment Law) in developing and implementing advance directive documents for use when they are unable to make their own health care decisions. The Resource Center website includes information about the use of psychiatric advance directives in New York, along with sample forms. The New York State Commission on Quality Care also has information about mental health care advance directives on its website. In New York, the Office of Mental Health Bureau of Children and Families has been working with consumers to develop the "Prime Directive Initiative," the goal of which is to give young people a voice in their treatment and service planning. They are developing two documents, "My Prime Directive Journal" and "My Prime Directive." The Journal is designed to inform youth of some of the choices they might want to think about for their self-care and the Prime Directive is a place to record what they need from others. It was announced in June 2001 that the documents, which are designed for use by consumers who will decide whether to share them with others, will be available soon. More information is in OMH Quarterly, June 2001, Vol. 7, No. 1. North Carolina has a law governing "Advance Instructions for Mental Health Treatment" (AIMHT), in addition to its laws on living wills and general health care power of attorney documents. Many have found this separate statutory scheme problematic. Some attorneys in the state advise clients to incorporate mental health treatment powers in a general health care power of attorney to minimize potential problems with, for example, automatic expiration, revocation rules, witnessing requirements and ambiguities in a provider's obligation to comply with advance instructions. An analysis of the law and sample forms are available in Schwab, Carol, "A Critical Analysis of North Carolina's Advance Instruction for Mental Health Treatment," The Forum for Family and Consumer Issues 3.1 (1998) (March 7, 1998). Ohio Legal Rights Service (the protection and advocacy system) has on its website information about "Advance Directives for Health Care" and a form for a "Durable Power of Attorney for Health Care and Declaration of Treatment Instructions." The Oregon Advocacy Center (the state's protection and advocacy system) has produced a guide for consumers and families on the state's mental health law, which includes information on a "Mental Health Declaration," which can include decisions on medications, ECT and hospitalization, under certain circumstances. Advocacy Inc., the Texas P&A, has information on its website about how to make a Declaration for Mental Health Treatment under Texas law, including sample forms. The West Virginia Mental Health Consumers Association has a Toolkit on Advance Directives for consumers, family members and providers. Have any courts upheld the validity of psychiatric advance directives? Permitting people who are not mentally ill to engage in advance planning through advance directive instruments on a wider basis than people with mental illnesses raises significant issues. To date one federal court has addressed such an issue. A Vermont law allows doctors to go to court to nullify mental health provisions in a durable power of attorney/advance directive if the treatment choices made by the agent do not result in improvement of the declarant's condition. In October 2001, a federal Magistrate Judge ruled that this provision is discriminatory and violates the Americans with Disabilities Act. The decision is Hargrave v. State of Vermont, No. 2:99-CV-128 (D. Vt. Oct. 11, 2001). Also available is a brief of 18 former state mental health commissioners, the National Mental Health Association, and other as amici curiae in support of the appellees in Hargrave v. State of Vermont. The plaintiff, Nancy Hargrave, had been diagnosed with a serious mental illness. She was involuntarily medicated, in direct contravention of her wishes expressly stated in her Durable Power of Attorney for Health Care. At issue in the case was whether the State of Vermont had the right to override a durable power of attorney with involuntary psychiatric medication in a non-emergency situation, thereby depriving individuals with mental illnesses from executing a durable power of attorney for health care that is afforded the same recognition and enforcement as the advance directives instruments executed by people who do not have mental illnesses. Do I have to appoint an agent? That depends on the law in your state. In some states, you may set up an advance directive without appointing a person to act for you. In most states, however, an advance directive for psychiatric care is only valid if you have named an agent. The Bazelon Center's study of advance directives suggests that these tools are much more likely to be honored when an agent has been appointed. We strongly urge consumers to name an agent whenever possible. If you appoint an agent, it should be someone you trust. You can direct your agent to present the choices you have expressed in your advance directive.You can also authorize him or her to make other decisions about your care that are not in your directive. Or you can appoint an agent without giving any written instructions, but if you do this, you should clearly explain what your wishes are so he or she can advocate effectively on your behalf. The template includes a provision (item 5 in Section II) that your agent's decisions about mental health treatment would prevail even if a court appoints a guardian or conservator for you. Does the document cover health care too? No. The document you produce with these template forms will be an advance directive for mental health decisionmaking only; it will not cover decisions about other medical or surgical treatment. It is a good idea to have an advance directive for health care as well, stating your preferences about emergency medical treatment. Forms to create one are available from most hospitals and health agencies. A form for New York State can be downloaded. How do I get and use the templates? We created the advance directive as six separate template forms rather than one, in part because it is designed for the WorldWide Web and is easier to print or download as a series of smaller "pages." The separation also makes the document more flexible. The only required sections are I, your statement of intent, and VI, the signature page—and in states that require an agent, II, the appointment of an agent. The other three templates are optional (though without at least one, you wouldn't have a directive), for you to express your preferences about hospitalization and treatment (III), about notification and visitors if you are admitted to a psychiatric facility (IV) and about the circumstances under which you can suspend the directive (V). When we asked several mental health consumers to test the templates, it took them between 45 and 75 minutes to complete all six sections. Completing these forms is likely to take you under two hours. Print this webpage for your future reference. Then go to the sections on the list of templates and print or download each one you wish to use. It's easy to print the various forms and complete them with a pen. While each document is on your screen, use the "print" button on your browser. If you prefer to edit the forms on a computer, you can download them with the "save as..." command on your browser's "File" menu. The text will be in ASCII format, with codes in the web language called HTML. If you have an HTML editor like Macromedia Dreamweaver, Adobe GoLive or Microsoft Frontpage, you can use this text to edit the forms so they will look much as they did on the internet. Otherwise, you can delete all the HTML codes and import the ASCII text into your word processor, formatting it however you wish. Now proceed to the section with directions for using the forms. Judge David L. Bazelon Center for Mental Health Law 1101 15th Street, NW, Suite 1212 Washington, DC 20005 Phone: 202-467-5730 Fax: 202-223-0409 Email: webmaster@bazelon.org |