Health care powers of attorney, advance directives, and living wills are important elements of a client’s estate plan. These documents enable clients to have control over their health care needs by naming health care agents to make health care decisions and by providing instruction to that agent about a client’s wishes regarding end-of-life health care. A carefully drafted health care power of attorney is likely sufficient to give an agent decision-making authority regarding a client’s mental health care. However, several issues may impede an agent from exercising the needed authority on behalf of a disabled person.
The largest impediment may be the health care system itself. Mental health providers may not recognize the advance directive or health care power of attorney as sufficient to allow the agent to make mental heath care decisions. Moreover, mental heath care decisions can be very complicated such that carrying out or even knowing a client’s preferences becomes very difficult. For a client with repeated mental health issues, naming an agent to make mental health care decisions as well as empowering the client to make his or her detailed wishes for mental health treatment known becomes an important part of a client’s estate plan.
A Mental Health Advance Directive (MHAD) allows a client, while competent, to express in advance the mental health treatments or interventions they will accept or refuse. A MHAD speaks specifically to mental health treatment options. MHADs generally come in three forms: the instructional directive, the proxy directive, and the hybrid.
The instructional MHAD is similar in effect to a living will. It allows the client, while competent, to document his or her intent, viewpoint, values, and desires regarding any future mental health care treatment.
The proxy MHAD is similar to a health care power of attorney. It allows the client, while competent, to appoint an agent to make mental health care treatment decisions on a client’s behalf.
The hybrid MHAD includes instructions for future mental health treatment combined with designating a mental health care agent. The client expresses his or her wishes regarding any future mental health treatment and appoints an agent to carry out those wishes, all within the same document.
Mental Health Advance Directives in Maryland
Maryland adopted a hybrid MHAD in 2001 under Maryland’s mental health advance directive statute as part of the Health Care Decisions Act. The Statute gives discretion and instruction on what may be included in a MHAD, including appointing a representative and identifying preferences as to medications, facilities, and mental health professionals.
Pursuant to the Statute, unless otherwise provided in the document, a MHAD becomes effective upon the certification in writing by two physicians, including the attending physician, that the client is incapable of making an informed decision. However, if explicitly drafted within the document, a MHAD can become effective upon signature or upon a triggering event. If a MHAD becomes effective upon signature, the client may bind himself or herself to a mental health treatment plan that may become impractical or contrary to their future wishes. If a MHAD becomes effective upon a triggering event, an inherent uncertainty is created by the trigger, perhaps undermining the client’s wishes or their ability to receive appropriate and immediate treatment. If the client first and foremost wants to facilitate quick and easy use by the agent, then the client will make the MHAD effective on signature.
The Maryland Department of Health and Mental Hygiene (DHMH) has created a hybrid MHAD form available on their website dhmh.maryland.org. This form is often used and recommend by the mental health community in Maryland. With this form, the client has the option to have the form be instructional, to appoint a health care agent, or both.
In 2009, a consortium representing the DHMH, providers, and advocacy groups created a new MHAD form (Consortium MHAD). This new form has yet to be adopted by the DHMH. While this new form is similar to the current DHMH form in format and effect, the new form is much more detailed concerning treatment options. It allows for greater specificity on types of treatment, visitors and medication. Additionally, this new form gives direction on issues that may arise for a client with a history of mental illness. This new form can be found on the Mental Health Association of Maryland’s website, www.mhamd.org.
In drafting an estate plan for a client with no known mental health conditions, a carefully drafted advance directive or health care power of attorney will likely suffice for a health care agent to make mental health care decisions on behalf of a client. However, for a client with known mental health issues, the inclusion of a MHAD, and specifically the Consortium MHAD, in the client’s estate plan will empower the client to make detailed choices about the client’s mental health care. This may provide the client greater peace of mind.
Lawrence Adashek is a principal at Lawrence Adashek, P.A., and is the Chair of the Elder Law and Disability Rights Section Council of the MSBA.Imtiaz M. Jindani is an Associate Attorney at Lawrence Adashek, P.A.