Psychiatric Advance Directives

This page is designed to assist you in writing a Psychiatric Advance Directive. Having a Psychiatric Advance Directive helps insure you have the quality of care you need and that your wishes for treatment are carried out even if -- in the moment -- you are declared unable to make those decisions.

A sample Psychiatric Advance Directive can be found here: pdf version word version.

Everyone should be allowed to make the important decisions regarding their health care. Whether it is choosing to undergo a surgical procedure, take a certain medication or receive life support, every individual should have the final say in how they are cared for. Advance directives are legal documents that provide a statement of a patient’s treatment preferences or wishes in the event that person becomes incapacitated, including situations where we have been placed in temporary detention or involuntary commitment. 

Advance directives are a very powerful tool for all of us but are often overlooked. Creation of an advance directive is an important step in preventing unwanted treatment and giving us the power we deserve.

Everyone has the right to two basic types of advance directives:

They can specify their wishes regarding treatment or services through an Instruction Directive. This written document can include desired options to avoid or minimize hospitalization; preferred stress-relieving activities; emergency contacts; list of activities known to worsen symptoms; preferred or problematic medications; preferences in regard to the use of devices such as Transcranial Magnetic Stimulation (TMS) or Electroconvulsive Therapy (ECT); and alternatives or preferences to the use of seclusion or restraint.

The second, a Proxy or Agent Directive, establishes the individual’s wishes regarding treatment power-of-attorney or decision making authority.  In this option, individuals are urged to select an agent that understands the role and responsibilities, as well as the mental health system. An agent’s decisions are expected to reflect what the individual would have preferred.  Virginia requires agents to apply a “best interest” standard, based on what the agent believes will best serve the patient’s needs.

The ten commonly asked questions about Psychiatric Advance Directives in Virginia located below is by the National Resource Center on Psychiatric Advance Directives.

Ten commonly asked questions about PAD's for Virginia

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

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  You may use Virginia’s Health Care Decisions Act to appoint an agent to make decisions about your psychiatric treatment if you become incompetent to make those decisions; or to write instructions about how you would like your psychiatric treatment to proceed; or both.  A standard form is provided in the statute.  You do not have to use it, as long as you create a written document and follow the procedural rules set out below.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  Part II(B) of the standard form allows you to set out your instructions on any aspect of your psychiatric treatment, which could include advance decisions to refuse medications or hospitalization.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your document containing advanced instructions must be notarized, or signed by two witnesses, one of whom must be someone other than your health care provider.  

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes.  However, your agent must not be an employee of your health care or care services provider.  Furthermore, chapter 23-06.5-10 of the statutes creates the following rule: if at the time you appoint your agent, you are a resident of a nursing home or other “long term care facility”, or if you are a “patient in a hospital” at that time, you must either state in writing that you have “read a written explanation of the nature and effect of the appointment” or else ask a member of the clergy, attorney or other person designated by the state to explain the effect of appointing an agent, and to sign a statement to the effect that he/she has explained that to you.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  Your agent may make decisions about anything that you could decide on, with the exception of psychosurgery, abortion or sterilization.  Your agent may not consent to your admission to a mental health facility or state institution for a period of over 45 days unless a court has also approved that admission.  Your agent must accept his or her appointment in writing.  Whilst you are competent to make decisions, your agent may withdraw by informing you that he or she wishes to do so.  If you become incompetent to make decisions, your agent may withdraw by informing your health care provider.  

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 make decisions in accordance with your advance instructions, if you have made them, and in accordance with your stated beliefs and wishes.  If your exact wishes are not known, your agent must make decisions in your best interests.  For more, see chapter 23-06.5-03.

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 competent to make a certain decision?

No.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  The statute says that your providers may decline to follow your instructions, or those of your agent, in three situations: (1) The provider feels unable to follow the instructions for “reasons of conscience or other conflict”; in that situation, the provider must try to find another provider who will follow the instructions; (2) The provider considers that the instructions run contrary to “reasonable medical standards”; (3) You are considered to require ”comfort, care or alleviation of pain”, and the treatment required for those purposes would be in conflict with your instructions.  For more detail, see chapter 23-06.5-09.  Additionally, if you were hospitalized or medicated under Virginia’s involuntary treatment laws, it is likely that health care providers could decline to follow your instructions, or those of your agent.  

10.  How long does my PAD remain valid?

The document containing your instructions and/or agent nomination is valid as long as you do not revoke it.  You may revoke your document at any time, orally or in writing, or by doing any act that implies you wish to revoke it.  If you appoint your spouse as your agent, he or she would no longer be a valid agent if you became divorced or legally separated after you wrote the document.  In that situation, you would need to amend the document to clarify who should be your agent.