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A Mental Healthcare Declaration and Power of Attorney is a document used by someone to document their preferences related to the treatment of their mental health and allows them to grant a person the authority to make mental healthcare decisions on their behalf should they ever become unable to make them on their own behalf. People often create documents like this if they anticipate a change in their mental health status that might leave them incapacitated for a period of time, but this sort of document can also be used as a preventative measure similar to other estate documents. The main purpose of the Mental Healthcare Declaration and Power of Attorney is to get the persons wishes in writing and formalized so that they can be referred to and respected if the person is ever unable to communicate those desires themselves.
While a Mental Healthcare Declaration is used specifically for the purposes of explaining preferences related to mental health treatment, an Advance Healthcare Directive, also known as a Living Will, is used to provide instructions related to other types of medical care, including end of life care. To assign someone to make financial decisions for a person who is incapacitated and no longer able to manage their own affairs, use a Power of Attorney document.
How to use this document
This document is composed of two sections: 1. a Mental Healthcare Declaration and 2. a Mental Healthcare Power of Attorney.
The first section of this document, the Mental Healthcare Declaration, has all of the information necessary for someone, known as the "Principal," to make their wishes known regarding the care they would like to receive regarding the treatment of their mental health conditions if they are no longer able to make their wishes known in the future. Firstly, the document outlines the event or condition that will make this document effective. Generally, this event is when a physician, psychologist, or other mental health professional certifies that the Principal is incompetent and no longer has the capacity to make mental healthcare decisions, but the Principal can also specify an alternative event for when the Declaration will take effect. This section also includes information such as the Principal's preferences for treatment facilities if they must be committed somewhere, use of medications during their treatment, whether they consent to participation in experimental studies and/or drug trials, and the administration of electroconvulsive therapy ("ECT") in the course of their treatment. The Principal is also able to outline any additional preferences or information that would be useful to the treatment of their mental health conditions, such as religious practices, treatment strategies, dietary necessities, and other concerns.
The second section of this document, the Mental Healthcare Power of Attorney, allows the Principal to designate someone, known as their Agent, to make mental health treatment decisions on their behalf in the event of a mental health crisis. Since it is not possible to anticipate every situation ahead of time, the designation of an Agent provides some flexibility and allows the Principal to give the responsibility of managing their mental healthcare and making their treatment decisions known to someone they trust. Generally, people select close family members, such as spouses or children, or long-time friends to fill this role. However, any other person who the Principal believes will respect their wishes and make sure that their expectations will be met can fill this role. The only exception is that this person may not be the Principal's health care provider or employed by their health care provider. Similarly to the Mental Healthcare Declaration, this section specifies when the Agent will take control, generally when the Principal is deemed incompetent and no longer able to make their own mental healthcare decisions. This section also includes information about specific powers and limitations of the Agent, such as consenting to the use of medication, ECT, experimental studies, and drug trials. The person the Principal designates to be their Agent, as well as any alternative people they designate if their first choice is not available, must acknowledge that they are willing to take on this role by signing the document. Finally, this section allows the Principal to designate a preference for a court-appointed Guardian if a court decides that this is necessary in the course of the Principal's treatment. This person is often the same as the Agent designated by the Power of Attorney, but may be any other person who a court deems competent to serve in this role.
This document includes everything necessary to make the Mental Healthcare Declaration and Power of Attorney legally enforceable. To make the document legally enforceable, it must be signed by the Principal, along with anyone the Principal has designated in the document as their Agent or Alternate Agent (if applicable). This signing must be attended by two witnesses. The witnesses must also sign the document and attest to the fitness of the Principal at the time of the document signing. In some states, the document must be notarized and includes a notary page in the states where this additional requirement must be met in order for the document to be legally enforceable. Once the document has been signed and notarized, the Principal can provide copies of the document to their treating physicians and designated Agent. In some states, it may also be filed with their state's Advance Health Care Direct Registry.
Mental Healthcare Declarations and Powers of Attorney in the United States are subject to the laws of individual states, so the document changes to conform to particular state's laws. There is no federal law concerning Mental Healthcare Declarations. However, the Uniform Rights of the Terminally Ill Act of 1985, which provides guidelines and standards that all Advance Health Care Directive documents, including Mental Healthcare Declarations, should follow, has been adopted by many states. Several states (Arizona, California, Idaho, Louisiana, Maryland, Montana, Nevada, North Carolina, and Vermont) also have Advance Health Care Directive registries where individuals can record a copy of their Mental Healthcare Declaration or Directive so that it is easily accessible by any health care provider in the state who provides them with treatment.
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