Kentucky Partnership for Families and Children

A Psychiatric Advance Directive (PAD) is a legal document that allows a person with a mental health disability to make decisions about possible future mental health treatment. As many know, mental health can be a lot like a roller coaster; sometimes you’re up, sometimes you’re down, and sometimes you’re riding along just fine. A PAD allows a person with a disability to state what treatments and action steps they want taken for when (and if) they are unable to make those decisions. For example, when hospitalization becomes necessary, a person with a disability can make sure the hospital follows the identified treatment and medication plan in the PAD.

More specifically, the PAD is written by a person with a disability, who is 18 years old and has no legal guardian. The PAD allows for that person to name someone as a surrogate, or substitute, decision maker. The PAD also allows someone to state what kinds of treatment methods are acceptable, and what medications are allowable. This allows the person to choose someone they trust to be responsible for making decisions about their case.

In 2003 the Kentucky General Assembly passed House Bill 99 which allowed individuals to create a PAD, or in Kentucky, an Advance Directive for Mental Health Treatment (ADMHT). Deciding what you want and what you don’t want for treatment can be especially intimidating, especially when you think you could change your mind when the time comes. To help you write out an ADMHT, there is a form available from the Legislative Research Committee (LRC, there is a link on page 6). You do not have to use this form if you don’t want to; however, it is a good idea to use it because the law states that a valid advance directive must be almost exactly the same as the form that is provided on the LRC web site. The law also states that you must have two adult witnesses sign your ADMHT or have it notarized to be legal. Neither the witnesses nor the notary can be your current health care provider or be related to your health care provider.

Despite all this information, understanding the ADMHT form well enough to fill it out to your liking can still be difficult. Fortunately, there are other resources available to you for assistance. Many are online and will be listed in the resources section at the bottom of page 6, but don’t hesitate to ask someone else you trust for help. Your current mental health provider can probably act as a good resource to help you understand the different questions about treatment and medication. If you have questions about the form that have more to do with the law, you can contact an attorney if you have one or know one, or contact Kentucky Protection and Advocacy for help.

Kentucky Q and A
Ten commonly asked questions about PAD's for Kentucky

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what Kentucky’s statutes say – or do not say – about PADs. The FAQs do not attempt to provide a complete picture of the law in Kentucky, nor can they take the place of legal advice. The answers were accurate when written in September 2006. (This was reprinted with permission)

1) Can I write a legally-binding psychiatric advance directive (PAD)?
Yes. You may use the part of the Kentucky statutes (laws) entitled Advance Directives for Mental Health Treatment to write instructions about how you would like your psychiatric treatment to proceed in the event that you are unable to make decisions yourself due to your disability. You may also, if you wish, appoint an agent (called a “Surrogate” in Kentucky) to make decisions for you in accordance with your instructions. The Kentucky Protection and Advocacy has published a short guide for consumers. The statute includes a sample form, which is not mandatory but is recommended because your document must be in “substantially” the same form as the sample in order to be valid.

2) Can I write advance instructions regarding psychiatric medications and/or hospitalization?
Yes. The statute allows you to state preferences as to regards of psychotropic (psychiatric) drugs and electroconvulsive therapy (ECT). You may also state your preferred emergency interventions. You may provide as much background information as you wish. The exception to this is when you can lawfully be treated against your will under Kentucky’s involuntary treatment legislation (see applicable KRS or KAR on the Legislative Review Commission webpage listed on page 5 under resources).

3) Does anyone have to approve my advance instructions at the time I make them?
No. However, the document containing your advance instructions must be either notarized or signed by two competent adult witnesses. The witnesses cannot be employees of your health care provider or any of their relatives.

4) Can I appoint an agent to make mental health decisions for me if I become unable to make them for myself?
Yes. The statute does not contain any restrictions on who can be your agent (“surrogate”), as long as that person agrees to act and signs your form or other document.

5) If I become unable to care for myself, can my agent make decisions for me about medications, and/or hospitalization?
Yes.

6) Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?
Your agent must exercise substituted judgment. At all times, your agent must take into account the recommendations of your health care provider. The statute states that your agent may override your instructions if, but only if, there is substantial medical evidence that following your instructions would cause you harm. For more, see KRS Chapter 202A.424 (Please see resources for links to KRS).

7) Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?
No. You may do one, the other, or both.

8) Before following my PAD, would my mental health care providers need a court to determine I am not able to care for myself to make a certain decision?
No. There is no special procedure necessary for your PAD to go into effect. In practice, all that is required is that your mental health care provider(s) feel that you are unable to make a decision or decisions yourself.

9) Does the statute say anything about when my mental health providers may decline to follow my PAD?
The statute provides that your providers may decline to follow your instructions, or those of your agent, when they are outside professional standards for health care. However, if you use your PAD to refuse treatment outright, your providers may override that refusal only when a court authorizes it, or in an emergency. Any treatment which does not follow your PAD must be documented in your notes and your providers must immediately inform you or your agent, if you have one. For more, see KRS Chapter 202A.426.

10) How long does my PAD remain valid?
Your PAD remains valid unless it is revoked by you. You may revoke it at any time orally or in writing, or by destroying the document which created it. For more, see KRS Chapter 202A.428.

Resources

10 Commonly Asked Questions About PADs for Kentucky
http://www.nrc-pad.org/content/view/171/67/

Kentucky Legislative Research Commission (to find Kentucky’s laws)
http://www.lrc.ky.gov/Law.htm

KY Division of Mental Health and Substance Abuse
http://mhmr.ky.gov/mhsas/Consumer%20Rights.asp

Kentucky Protection and Advocacy
www.kypa.net
(800) 372-2988

KY National Alliance for the Mentally Ill
www.nami.org

KY Psychological Association
www.kpa.org

What is an Advance Directive for Mental Health Treatment?
http://www.uky.edu/~larry/ky/admht.html