Disabilities Guidebook: Advance Directives for Mental Health Treatment

Disabilities Guidebook: Advance Directives for Mental Health Treatment

Last updated: August 2010

(Chapter 8 Section 5 from Guidebook of Laws and Programs for People with Disabilities)
 

 

 

The Mental Health Treatment Preference Declaration Act

What Is It? An Illinois law which allows you to give advance instructions about your mental health treatment.

What Is Its Purpose? To provide a way for you to control the types of mental health treatment you will receive in the future if you are unable to competently make and communicate decisions at that time.

Who Can Benefit? Illinois residents with mental illness.

I. Your Legal Rights

Declaring an Attorney-in-Fact to Make Mental Health Decisions for You

The Declaration
The Mental Health Treatment Preference Declaration Act (Act) is an Illinois law which lets you give instructions about whether you wish to receive certain types of mental health treatment, if you cannot make those decisions yourself in the future. You give these instructions on a form called a "Mental Health Treatment Preference Declaration" (Declaration). You must be at least 18 years old or be legally emancipated to be able to execute the form.

The Declaration allows you to appoint someone to make your mental health treatment decisions for you and to make sure that your wishes are followed by your doctors and other mental health providers. The person you appoint is called your attorney-in-fact.

A Declaration may be useful to people with a type of mental illness which makes it likely that, due to their illness, they may become unable to make decisions in the future.
Example: A Declaration may be appropriate if your illness is episodic, (you have occasional periods where your symptoms are more severe) or progressive (it is expected to get worse over time).

A Declaration can be a powerful legal tool to let you control the type of mental health care you receive. However, once you sign a Declaration, it can be difficult to revoke it if you later change your mind. It is very important that you consider carefully before signing a Declaration.No one can force you to sign a Declaration.

Example: You cannot be required to sign a Declaration as a condition of being admitted to or discharged from a mental health facility.
You are strongly advised to consult with a lawyer before signing a Declaration. It is possible that a Power of Attorney for Health Care or some other legal mechanism may be better suited to your situation.

Mental Health Treatment Covered by the Declaration
The Declaration may be used to give advance instructions about three types of mental health care:

  • The use of electroconvulsive treatment (also known as ECT or electro-shock therapy);
  • The use of psychotropic medications; and
  • The admission to a mental health facility for a period of up to 17 days.

Examples: The Declaration may be used to state that you do not want to be given certain medications, or that you do not wish to be admitted to a mental health facility or to a particular facility.

How To Make a Declaration
The Act sets out a sample Declaration form. (§ 75 of the Act). You must sign the form in the presence of two witnesses, and then the witnesses must sign the form. By signing the form, the witnesses are indicating that they know you, that you appear to be of sound mind, and that no one forced you or improperly persuaded you to sign the form.

Certain people cannot act as witnesses. They include any person related to you, your doctor, a mental health service provider, the owner of a health facility where you are a patient, or any of those persons' relatives.

After the Declaration is signed and witnessed, it then must be delivered to your treating doctor(s). This allows your doctor to know your wishes and to follow them in the event that the Declaration becomes effective.

Naming Your Attorney-in-Fact
In the Declaration, you can name a person, called your attorney-in-fact, who can make mental health care decisions for you. The person you name must be age 18 or over, and should be someone whom you know well and who you trust completely to respect your wishes. You can name an alternate attorney-in-fact, who will take the place of the first person you name if that person cannot or will not act for you.

Certain people cannot be your attorney-in-fact. They include your doctor or other mental health service provider, the owner of any of your health care facilities, or any person employed by them.

You do not have to appoint an attorney-in-fact. If you wish, you may simply use the Declaration to inform your doctor of your wishes. However, by appointing an attorney-in-fact, you are putting that person in a better position to speak for you to make sure that the doctor knows and follows your wishes. Also, an attorney-in-fact will be able to make decisions for you if an issue arises that your Declaration does not address.

What the Attorney-in-Fact Can Do
If the Declaration goes into effect, the attorney-in-fact must follow your wishes as they are expressed in the Declaration. Example: If the Declaration states that you do not want to receive electro-convulsive therapy, the attorney-in-fact cannot authorize this on your behalf.

If the Declaration does not state what you want done, then the attorney-in-fact must make the treatment decision that he or she believes to be best for you.

Your attorney-in-fact has the right to see your medical records and talk with your doctors, so that he or she can make an informed decision about your mental health care.

When the Declaration Goes Into Effect
Even after you sign a Declaration, your doctor and other mental health service providers must continue to speak directly with you and follow your wishes, for as long as you are able to understand information well enough to make an informed decision about your care.

The Declaration will go into effect if you become incapable at any time within the three year period after it was signed. In order to be considered "incapable," either a judge or two doctors must determine that you cannot understand information well enough to make an informed decision about your mental health care, or that you cannot communicate your wishes concerning your mental health care.

If you wish, when you execute the Declaration you may choose one of the two doctors who will make the determination whether you are incapable.

If you are determined to be "incapable," then your doctors and other mental health care providers must follow your instructions contained in the Declaration. They also must follow the instructions from your attorney-in-fact, unless those instructions conflict with the specific terms of the Declaration.

When Providers Do Not Have to Honor the Declaration
As a general rule, doctors and other mental health care providers must follow the terms of your Declaration, even if they do not agree with the terms. However, they do not have to follow the terms of the Declaration if:

A court order contradicts the terms of the Declaration; or
There is an emergency involving an immediate danger to life or health.

Examples:
(1) Your Declaration states that you do not wish to receive psycho-tropic medications. However, your doctor determines that you are very likely to harm yourself when you don't take the medication. This is an "emergency." The doctor may give you the medicine despite the terms of your Declaration.
(2) You could be required to be admitted to a mental health facility even though your Declaration states that you did not want this, if a judge determines that you needed to be hospitalized.

How Long the Declaration Lasts
A Declaration expires after three years from the date that it is signed, unless it has been revoked before that time. However, if the Declaration has been invoked within the three year period, and is in effect after three years, it will remain in effect until you are no longer "incapable."

Examples:
(1) You execute a Declaration on July 1, 2001. The Declaration expires on July 1, 2004, if you were never found to be incapable before that date.
(2) You execute a Declaration on July 1, 2001. On December 1, 2002 you are found incapable. As of July 1, 2004, you are still incapable. The Declaration will remain in effect until such time as you are no longer found to be"incapable."

How to Revoke a Declaration
You may revoke the Declaration at any time that you have not been found to be "incapable." In other words, you cannot revoke the Declaration during a period of time that you are found incapable, even if you have changed your mind about the terms of the Declaration.

In order for the revocation to be legally effective, you must take the following steps:
The revocation must be in writing, signed by you;
A doctor also must sign the revocation, certifying that he or she believes that you are "capable;" and the revocation must be given to your treating doctor.

As you can see, it can be very difficult to revoke a declaration, and this it is why it is very important to carefully consider before executing a declaration.

Amending the Declaration
The Act states that you can amend or change the terms of the declaration. Like a revocation, this can only be done if you are not deemed "incapable." It is extremely important that all of the people who may have received a copy of the Declaration are notified of the amendments. This may include doctors, other mental health providers, and people appointed as your attorney-in fact.

Withdrawal of Your Attorney-in-Fact
The person you name as your attorney-in-fact may stop acting on your behalf at any time. If your attorney-in-fact wants to withdraw, he or she should give you notice of this fact. If you are "incapable" at the time, the notice of withdrawal should be given to your treating doctor.

Even if the attorney-in-fact withdraws, he or she may cancel the withdrawal and resume acting on your behalf. He or she must give you written notice, or give the written notice to your treating doctor if you are "incapable" at the time.

II. Where to Go for More Information

Statutes and Regulations
The Mental Health Treatment Preference Declaration Act is found at 755 ILCS 43/1.

Equip for Equality, which is an organization that advocates for the rights of people with disabilities, has produced a very thorough and detailed handbook which further explains the Mental Health Treatment Preference Declaration Act and which contains sample forms. See the section of this guidebook titled "Legal Advocacy for People with Disabilities" in Chapter 16, Miscellaneous Rights, for more information about Equip for Equality.

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Helpful Organizations
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1.

Prairie State Legal Services, Inc. - Fox Valley Office
1024 West Main Street St. Charles, IL 60174 | View map

Phone: 630-232-9415
TTY: 630-232-9414
Toll-free: 800-942-4612

Languages: English, Spanish
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Prairie State Legal Services, Inc. provides free legal services in civil legal matters for persons who have incomes below 125% of the federal poverty guidelines and senior citizens age 60 and older regardless of income.

Eligibility

Whether you are eligible for help from Prairie State Legal Services depends on the following factors:

  • You meet our income and asset guidelines, or are age 60 or older.
  • We have no ethical conflict of interest regarding your legal issue.
  • You live within the service area of Prairie State, or have a civil legal problem in one of the counties in our service area.
  • You meet the citizenship or immigration requirements established by Congress. It should be noted that immigrants who are fleeing domestic violence or trafficking are eligible for legal help regardless of immigration status in matters to address the abuse.
  • Government regulations do not prohibit Prairie State Legal Services from handling your type of legal problem.
  • You have one or more legal problems that can be addressed by PSLS attorneys and that fall within our established priorities.

Types of Legal Help

Due to high demand for our services, our staff is able to provide representation in certain areas of civil law designated as a priority. The following kinds of problems are illustrative of the cases that we may be able to help with (not an exclusive list):

High Priority Cases

  • Family Law: Protection from abuse or exploitation of domestic violence victims, elderly, children and persons w/disabilities; divorce and related relief for domestic violence victims.
  • Housing Law: Evictions and lock-outs; foreclosure defense; loss or denial of subsidized housing benefits; loss or denial of essential public utilities; substandard housing conditions cases that cannot be addressed by other agencies.
  • Health Care: Loss or denial of medical or nursing home care; loss or denial of medical benefits (Medicaid, Medicare).
  • Needs-based government assistance: Loss or denial of SSI, GA, TANF, VA, food stamps.
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Other Cases We May Handle

  • Family Law: Child support, custody, guardianship, visitation, parental rights, divorces for non-domestic violence victims.
  • Housing: Rent issues; security deposits; unit size; discrimination.
  • Education: admission, expulsion, special education & related services.
  • Health care and people with disabilities: powers of attorney and other health care documents; discrimination and reasonable accommodations.
  • Income or benefits: overpayments of government assistance; health insurance matters; employment issues.
  • Consumer Law: Bankruptcy or other debt relief; consumer fraud; protection of exempt income and assets; unfair debt collection practices; repossession; contract defenses.
     

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