Florida Health Care Power of Attorney Covers Mental Health, Too
By: Barry E. Haimo, Esq.
July 30, 2021
Does medical power of attorney cover mental health? The answer may surprise you.
Florida health care advance directives don’t just cover physical incapacity – they also can be used to address a decline in mental health. Mental health power of attorney uses a psychiatric advance directive (or PAD). A PAD is a legal document that can:
- Outline an individual’s preferences for mental health treatment
- Appoint a health proxy to interpret those preferences during crisis
- Or both
How exactly do PADs work?
When you are well enough to designate a mental health power of attorney you must draft your directives. And it is crucial to document preferences in a clear and concise manner. If someone experiences a mental health crisis, the appointed health proxy may step in to assist in moving forward with the patient’s directives.
When Does a PAD Go into Effect?
It may be surprising to learn that the only requirement for a mental health power of attorney directive to go into effect is that your physician decides that you lack competence.
If the attending physician isn’t a hundred percent certain that you are unable to make health care decisions for yourself, they may consult another physician. But once the determination is made, your medical notes are reviewed to ensure you’ve signed them, and your appointed health proxy is immediately notified.
The Health Proxy
Under the Florida statute for Health Care Advance Directives, you may appoint anyone you choose as an agent to make decisions about your psychiatric treatment should you become unfit to make them yourself.
In our state, the health proxy is legally known as a “Health Care Surrogate.” This appointed agent becomes responsible for making decisions about anything that you would decide for yourself if you were well. This agent has a responsibility to act in your best interest.
The statute also permits a person to designate a health care surrogate simply by informing his or her mental health care providers orally. This is actually one of the biggest reasons to set it up ahead of time, since it likely is not a decision that you should be making in the midst of a mental health crisis.
Your PAD has instructions about how you expect your appointed Health Care Surrogate to move forward with your mental health care treatment. These written instructions are called a “declaration.”
Instructions on any aspect of your health care treatment you wish may be added – including advance decisions regarding psychiatric medications, hospitalization preferences, and/or refusal of them.
Regarding any treatments that are experimental or controversial, you must explicitly consent to any of them. Otherwise, health care providers will assume you do not consent to them.
In order to be a valid, working document, the declaration must be signed by two adult witnesses. One must be someone other than a spouse or blood relative. And neither may be an employee of any of your health care providers.
As with any legal planning document, it is important to periodically review your PAD and to make any necessary updates. This document is valid until you revoke it. You can revoke your directive several different ways:
- Making a new document while you are competent nullifies the previous version
- Drafting and signing a statement that you are revoking the PAD
- Telling your health care providers while you are competent
- Destroying the current PAD
But there is one situation in which your directives may not be followed – when you have become subject to The Baker Act.
The Baker Act
The “Baker Act” is the common name for the Florida Mental Health Act, which went into effect in 1971. It is named after Maxine Baker, a member of the Florida House of Representatives, who was known for her advocacy of mental health issues.
The statute allows emergency or involuntary institutionalization and examination of an individual. A person may be held for up to 72 hours in a mental health treatment facility if they meet certain criteria, including:
- Reason to believe the person is mentally ill
- Because of the mental illness, the person has refused a voluntary examination or is unable to determine whether such an examination is necessary
- Without treatment, the person is likely to suffer from neglect or to harm himself or herself or someone else in the near future
The process can be initiated by doctors or mental health professionals, in addition to judges and law enforcement officials.
How The Baker Act Can Affect You
Be aware that if you become subject to the Baker Act, you may be hospitalized and/or treated against your will. This means your mental health care provider may decline to follow your directive should you meet the criteria above. At that point, your health care decisions must be made by a court-appointed agent known as a “Guardian Advocate.”
The need for mental health power of attorney often arises suddenly. Now that you know medical power of attorney covers mental health, you have the opportunity to work with your attorney on drawing up your declaration before it’s too late.
In order to avoid any issues amidst a sudden crisis, we also recommend you make the person you’ve entrusted as your decision maker aware of your intention to appoint them – and that you do this well in advance.
Originally published 12/11/2018. Updated 07/30/2021.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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