A power of attorney is a written document by which the person making it (the “principal”) grants another person (the “agent”) authority to make decisions and act for the principal. In planning clients’ affairs, attorneys often use durable financial POAs, which name an agent to help with or manage the principal’s finances. Another typical POA document is the health care power of attorney, which names an agent to make health care decisions for the principal. In addition to these common POAs, for persons with neurodivergence, there is another POA worth considering: the mental health POA. This post explains how power of attorney is different than guardianship, discusses mental health POAs and mental health care declarations, and explores how they might help a person with neurodivergence.
Mental Health Power of Attorney Differs from Guardianship
Guardianship is the legal process whereby a court finds a person to be incapacitated and appoints another person to make decisions for the incapacitated person. The court chooses who the guardian is. The guardian may be someone the incapacitated person knows (a family member or friend), or may be a disinterested professional (however, in Pennsylvania, a care provider ordinarily can not be named guardian). Guardianship continues unless the court determines that the person has regained capacity or otherwise is not needed. For more information about guardianship in Pennsylvania, see my website’s page about guardianship.
Mental health powers of attorney are different. A person uses a mental health POA proactively, to choose which person can act on his or her behalf. The person making the POA (the “principal”) also specifies what powers the agent has, and when the POA is effective. A mental health POA may be revoked at any time by a competent principal, and (in Pennsylvania) ordinarily expires two years after the date it is executed. The POA can be drafted to take effect immediately or only when and for as long as the principal is incapable of making informed decisions. The authority granted can be limited or broad, subject to some limits set by statute: in Pennsylvania, mental health agents cannot legally consent to psychosurgery or to relinquish the principal’s parental rights; also, agents do not have authority to consent to ECT or experimental treatments or research unless a mental health POA specifically grants it.
Having a POA may help a person alleged to be incapacitated to dispute a proposed guardianship. After all, the point of guardianship is to grant a person authority to safeguard the interests of an incapacitated person. An agent acting under a POA already meets that goal, and is better than guardianship in that the principal chose who would act for him or her. So, a court could find guardianship unnecessary if an agent under a POA is willing and able to serve.
POAs commonly express a desire that, if a court determines guardianship to be necessary despite the principal’s having a mental health POA, it appoint the agent as the principal’s guardian. Under Pennsylvania law the court must appoint as guardian a person nominated by the principal in a mental health POA “except for good cause or disqualification.”
How Mental Health POAs and Mental Health Care Declarations are Used
A principal uses a mental health POA to appoint an agent to make mental health care decisions for the principal. Like other powers of attorney, mental health powers of attorney may be drafted according to the principal’s preferences – broadly or narrowly, to be effective immediately or upon an event’s occurrence (for example, only if and to the extent a person is unable to make or communicate informed decisions). If the POA only is effective under certain circumstances, it typically will say who will judge whether the condition has been met. For example, a POA effective when a person lacks capacity might read:
This power of attorney will become effective when I am deemed incapable of making mental health care decisions, as determined by examination by a psychiatrist and one of the following: another psychiatrist, psychologist, family physician, attending physician or mental health treatment professional. Whenever possible, one of the decisionmakers shall be one of my treating professionals.
Mental health POAs also may include mental health care declarations providing treatment preferences or information to be used in making care decisions, such as:
- Treatment preferences (i.e., which inpatient psychiatric treatment facilities, care providers, or psychiatric medications should/should not be used). These are not binding but should be followed if at all possible;
- Directions for family notification;
- Limitations on release or disclosure of mental health records;
- Preferences for temporary custody of children;
- Information about the principal’s health history, preferred types of interventions, activities that help or worsen symptoms, dietary requirements, and religious preferences.
How Mental Health POAs and Mental Health Care Declarations Can Help
Having a mental health care agent means there is a person legally able to obtain information from providers, participate in planning care and treatment, and, if necessary, dispute care providers’ determinations or treatment plans.
While a person with a mental health POA can still be involuntarily committed if he or she meets the standards for a 302, having a mental health POA still may help in these situations. For example, an agent could:
- Seek treatment before the principal requires emergency treatment, if he or she notices signs that the principal might be entering an active episode;
- Speak directly to care providers regarding the principal’s condition and treatment and receive updates from them;
- Direct treatment by making informed decisions according to the principal’s preferences; and
- Dispute care providers’ facility placements, medical determinations, or treatment plans.
As an aside: it also may help a person with repeated episodes requiring inpatient treatment to proactively make a treatment plan with a preferred facility so that admission can be easily obtained when an episode occurs.
Conclusion
Mental health powers of attorney and mental health care declarations can help people with neurodivergence to direct their care, and to advocate for better care. Since you’ve stuck with me this far, let me give you my two cents about nonlawyers using forms for legal documents available online, without help, vs. hiring an attorney. I’ve reviewed many POAs completed by nonlawyers. Often, they are not completed correctly or do not include information or instructions that would make them as useful as possible. Using an attorney (? ) to prepare these documents, or to help you complete a form, should be cost-effective and is money well spent. An attorney will use her experience to help you think through decisions and preferences, will tailor the documents to your specific needs, and will ensure they are completed so that they will be accepted and followed if needed. Thanks for your consideration! If you must, must use an online form without assistance, you might check out these resources developed by Disability Rights Pennsylvania.