Texas law has provided a form called a Declaration for Mental Health Treatment that allows you to state in advance what your treatment preferences are if you experience a mental health crisis.  The form allows you to specify:

• whether you consent to convulsive treatment (electroshock therapy),
• your preferences about the administration of psychoactive medications,
• what symptoms may prevent you from being able to give consent to medical care,
• what medications you do and do not consent to have administered to you,
• the order of your preference for treatment in the form of restraint, seclusion or medication,
• whether you want a male or female to administer those treatments, and
• additional preferences or instructions.

It must be signed by you and two witnesses who:

• are not your health care provider or its employees;
• are not related to you by blood, marriage or adoption;
• are not entitled to any part of your estate; and
• do not have a claim against your estate.

You should definitely sign a declaration if you have mental health issues that could possibly result in the need for you to be committed to a mental health facility.  Schizophrenia and bipolar disorder are two that come to mind.

However, the declaration is only effective if you are declared incapacitated by a court.

Current laws are designed to make it much harder to involuntarily commit someone to a mental health facility than in the past, when families could use “mental illness” claims as a basis for locking up undivorceable wives or mentally ill, disabled, or problematic children for years or even life.  Current laws are designed to enable the mentally ill to retain more control over their own care.

Unfortunately, if you realize you are in the early stages of a crisis and voluntarily commit yourself, you are considered competent to make treatment decisions and the declaration does not have to be consulted.  In theory you should be able to make treatment decisions as they are presented, and you would probably make the same decisions as set out in the declaration – if only you weren’t in the midst of a mental health crisis.  Your altered state of mind might make you more susceptible to mental health professionals who argue for treatments you have previously stated in writing that you do not want.  Additionally, a Medical Power of Attorney only becomes effective if your doctor is willing to certify in writing that you are not capable of making your own health care decisions.  That means that when you are considered competent to make treatment decisions yourself, the doctors and nurses don’t have to consult the person you have appointed as your agent to make those decisions for you.

I believe that most doctors will honor the declaration and they will consult with the agent you appointed – but I have experienced doctors who think they know what is best for a patient and become annoyed at any resistance to their superior knowledge.

So what should you do?  It is very important to sign a declaration stating your treatment preferences if you experience a mental health crisis.   It is also important to sign a Medical Power of Attorney naming someone to act as your agent that you know will fight with doctors and nurses about whether you are actually competent to make decisions and to make sure you get the care you have specified.  The two documents together will give your agent clear proof of the kinds of treatments you do and do not want as well as the authority to fight for you.

Bear in mind that the declaration is only effective for three years after it is signed.   However, if you are incapacitated on the expiration date, then it extends until you are no longer incapacitated to make health care decisions.  An expired declaration will still act as a guide for the agent you named in the Medical Power of Attorney, but if it is no longer binding on health care professionals.  So if you suffer from a mental illness, it is wiser to execute a new one every three years.

May is National Mental Health Month, so I plan to post other blogs focusing on mental health issues in Estate Planning, including a description of the process of involuntary commitment for mental health issues – which may involve another situation in which the Declaration for Mental Health Treatment may not completely control – and planning for the inheritance by an adult child with mental health issues.

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Megan Baumer

Estate Planning and Medicaid Planning Attorney

Law Office of Michael Baumer

512-476-8707

Megan@baumerlaw.com

Website: www.baumerlaw/estate-planning.com

Blog:  www.baumerestateplanning.com