Mental Health and Health Care Directives: Everything You Need to Know

health care directivesHealth care directives, which include the Living Will, Health Care Agent Designation, and HIPAA Medical Release, are necessary components of any estate plan. Health care issues occur more and more as we age, so it’s important to have the proper legal documentation in place to ensure we get the care we need. However, mental health is one issue that does not come up very often when discussing health care directives since other health concerns, like heart failure and cancer, seem more pressing. But since mental health falls into the realm of health care, it is still covered by your health care directives.

Health care directives are a great help to those with mental health issues as it allows a loved one to help make decisions about care, discuss treatments and medications with doctors, and complete the paperwork that’s sometimes necessary to receive important mental health services. Estate planning attorneys advise their clients to choose someone they trust to act as health care agent, since this person will have to advocate on your behalf – sometimes against the wishes of other loved ones – in these difficult situations.

However, it’s important to note that a standard health care directive is not always adequate in cases of more extreme mental health issues, such as Alzheimer’s disease or schizophrenia. In such instances, it’s usually a good idea to consult with an experienced attorney about creating a “mental health care directive.” Mental health care directives specifically cover items such as involuntary commitment, controversial treatment choices, and provide health care agents with greater control over what medications are given.

It’s important to note that in cases where a person’s mental state renders them incapable of making legal decisions, a conservatorship or guardianship hearing will need to be held at the probate court to give a caregiver the authority to make mental and physical health decisions.  A healthcare directive in this case will no longer suffice.  Adult guardianships can be a long and difficult process, and all decisions are ultimately left up to the court.

If you have further questions about health care directives, and more specifically how to proceed with legal planning when a person’s mental health issues are a concern, please call us at (949) 260-1400 to set up an initial consultation.

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