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DURABLE MENTAL HEALTH CARE POWER OF ATTORNEY

An agent can choose to put you in that nice padded cell in the psychiatric wing of your favorite hospital.

A Durable Mental Health Care Power of Attorney names someone, called your agent, to put you in that nice padded cell in the psychiatric wing of your favorite hospital. Two psychiatrists, with your agent, will decide if you really need that padded cell.

You could need psychiatric hospitalization if:

  • You have a medication interaction that dramatically effects your mood and ability to function.
  • You have psychosis associated with Alzheimer’s or dementia.
  • You have had psychiatric issues in the past.

The idea of being locked in a nice padded cell strikes fear into most of us. It brings back nightmares from reading “One Flew Over The Cuckoo’s Nest”. By signing a Durable Mental Health Care Power of Attorney, you are not guaranteeing that someone will lock you up and throw away the key. The goal is to avoid the need for court intervention in the event you need psychiatric intervention.

You may or may not know that you can be involuntarily committed to a psychiatric ward for 72 hours if you are a danger to yourself or to others. During those 72 hours, you will be extensively evaluated. If at 72 hours and 1 minute, the psychiatrists believe you need to remain hospitalized, that is when the Durable Mental Health Care Power of Attorney kicks in.

If you don’t have a Durable Mental Health Power of Attorney, and you truly need psychiatric hospitalization, the only option available is for your loved ones to pursue court appointed guardianship. Although getting guardianship is not overly difficult, it is a huge hassle in the middle of a family crisis. A quick signature with a notary on a legal document is all that’s needed to avoid hours of potential aggravation for your family.

Your Durable Mental Health Care Power of Attorney is amendable and revocable by you.

As I mentioned above, you name an agent who will make mental health decisions for you. That agent can basically make all mental health decisions you could have made if you were able to do so.

You can name agents to make decisions for you in different ways.  Let’s say you want to name Jen, Marcus and Maria as your agents.

  1. You can say Jen will make the decisions. If she dies or is unable to make decisions, then Marcus will make the decisions. If Marcus dies or is unable to make decisions, then Maria will make the decisions.
    or
  2. You can say Jen and Marcus will make the decisions. While they are both agents, they must make all decisions together. If both Jen and Marcus die or are unable to make decisions, then Maria will make the decisions.Your agent will have the ability to get all of your medical and psychiatric records, including the good, the bad and the embarrassing.

People often confused Durable Mental Health Care Powers of Attorney and Durable Health Care Powers of Attorney. One deals only with psychiatric issues while the other deals with all other medical issues.  They are separate documents for a couple of reasons:

  1. Both usually say you need to be mentally incapacitated. However, the test for incapacity is tougher in the Durable Mental Health Care Power of Attorney.
  2. A Durable Health Care Power of Attorney gives broader authority than its mental health counterpart.

There is definitely a window of opportunity when someone can sign a Durable Mental Health Care Power of Attorney. The signer has to be legally competent to sign. This means he/she must understand what the document says, how it works, how it impacts the signer and the pros and cons of signing the Power of Attorney.

Many people come to me after an initial Alzheimer’s or dementia diagnosis, asking to sign Powers of Attorney. The window on legal competence may already be closed. This becomes particularly important in the following scenario. Let’s say Marilyn has been diagnosed with the early stages of dementia. She has good and bad days.  Marilyn’s 3 children do not trust each other. There is a chance that if she gives power of attorney authority to 1 of the kids, the others will say that she was not legally competent to do so. Her diagnosis may make this a true statement.

The best advice I have for everyone is to get all of your estate planning documents, including Powers of Attorney, done when you do not have any diagnosis, which impacts your mental health in any way.

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