Introduction
What are advanced directives?
Advance directives are your instructions for your health care in the future, in case you become ill and unable to speak for yourself. Advance directives are stated in legal documents. This booklet describes two kinds of legal documents you can use to state your advance directives: the durable power of attorney for health care and the declaration for mental health treatment. This booklet then focuses on the durable power of attorney for health care. Advance directives documents may state your instructions for both medical treatment and for mental health treatment. This booklet focuses on advance directives for mental health treatment.
Like any publication about the law and your legal rights, this booklet is not a substitute for professional legal advice. In order to protect your legal rights, you should consult a lawyer about the details of your own situation. For referrals to lawyers, contact:
Ohio State Bar Association (OSBA)
Telephone: 614-487-2050
Ohio Legal Services
Telephone: 866-529-6446
Disability Rights Ohio (DRO)
Telephone: 800-282-9181 or 614-466-7264
TTY: 800-858-3542 or 614-728-2553
How can I name someone to speak for me in case I can not speak for myself?
Ohio laws define five kinds of legal documents by which you may name other people to speak for you, in case you are not able to speak for yourself. In these documents you are called the principal. As the principal, you execute a document when you create and sign the document and your signature is witnessed or notarized. The person you name to speak for you may be called your agent, your proxy or your attorney-in-fact, depending upon the kind of document you execute. Whatever the term, you name that person to speak for you according to your instructions. The five kinds of legal documents defined by Ohio laws are:
General Power of Attorney: In the general power of attorney, you direct your agent, proxy or attorney-in-fact to speak for you, usually in financial or property-related matters such as signing your checks or signing closing papers to sell your house. The general power of attorney is temporary and loses effect if you are incapacitated or judged to be incompetent. The general power of attorney is defined in Ohio Revised Code (ORC) sections 1337.01 through 1337.08. New ORC section 1337.18, effective March 18, 2006, creates a statutory form for power of attorney.
Durable Power of Attorney: In the durable power of attorney, you also direct your attorney-in-fact to speak for you, as you would in the general power of attorney, except that the durable power of attorney endures, or remains in effect for as long as you specify and remains in effect if you become incapacitated or are judged to be incompetent. The durable power of attorney is defined in ORC section 1337.09.
Durable Power of Attorney for Health Care: In the durable power of attorney for health care, you name an attorney-in-fact to make heath care treatment decisions (medical treatment, mental health treatment or both) for you, if your attending physician determines that you have lost the capacity to make health care decisions for yourself. If you wish, you may state specific instructions to your attorney-in-fact, such as when to consent to treatment, when to refuse treatment, and when to withdraw consent to treatment. The durable power of attorney for health care is defined in ORC sections 1337.11 through 1337.17.
Declaration for Mental Health Treatment: In the declaration for mental health treatment, you declare your instructions for the use or continuation of mental health treatment, or for the withholding or withdrawal of mental health treatment. If you wish, you may designate a proxy to make mental health treatment decisions according to your declaration. The declaration for mental health treatment is defined in ORC sections 2135.01 through 2135.14.
Living Will: In a living will, you declare your instructions for the use or continuation of life-sustaining treatment, or for the withholding or withdrawal of life-sustaining treatment. Unless you specify otherwise, the living will is triggered or becomes active if your attending physician and one other physician determine that you are in a terminal condition or in a permanently unconscious state. The living will is defined in ORC sections 2133.01 through 2133.15. If you have both a living will and a "Do-not-resuscitate" (DNR) order, the living will controls treatment decisions over the DNR, if the DNR is not consistent with your living will.
What are two kinds of legal documents for mental health treatment?
Among the five kinds of legal documents, two documents may be used to declare advance directives for mental health treatment. You may execute the durable power of attorney for health care or the declaration for mental health treatment as your advance directives for mental health treatment.
You may have both of these documents in effect at the same time to declare your advance directives for health care. You may have the durable power of attorney for health care to state your medical treatment instructions, and you may have the declaration for mental health treatment to state your mental health treatment instructions. However, if both documents state your instructions for your mental health treatment, then your declaration for mental health treatment would be the controlling document for your mental health treatment.
An important difference between the two documents is that a durable power of attorney for health care is revocable (able to be revoked or cancelled) at any time. You may cancel or change your instructions whenever you wish. A declaration for mental health treatment is not necessarily revocable at any time. If your doctor determines that you lack capacity to make decisions about your health care, you may not revoke your declaration for mental health treatment. You may revoke the declaration only after you have regained decision-making capacity.
The declaration for mental health treatment is a relatively new document, defined by an Ohio law enacted October 29, 2003. Because the law is fairly new, it is not clear how Ohio courts will interpret or enforce a declaration for mental health treatment and your wishes stated in that document.
What are the benefits and limitations of advance directives?
Advance directives can be an important tool for you as a consumer of mental health services to guide your care if your physician determines that you lack capacity to make your own health care choices. In Ohio, you may state your advance directives for mental health treatment by executing the two kinds of legal documents described above, the durable power of attorney for health care and the declaration for mental health treatment.
Under Ohio laws, advance directives are only one aspect of informed consent to treatment. The right to informed consent means that you have the right to be given enough information to make your own decisions about your medical and mental health treatment. However, if a probate court finds that you are not competent to make these decisions, the court may appoint a guardian to make these decisions for you. If a probate court orders you to be admitted to a hospital for mental health treatment, the hospital can ask the court to issue an order to give you medication without your consent.
By executing advance directives documents - the durable power of attorney for health care or the declaration for mental health treatment - and by giving your agent, proxy or attorney-in-fact instructions about your preferences for mental health treatment, you may be able to exercise more control over your care. You may be able to avoid involvement of the probate court, because during times you can not speak for yourself, health care decisions will be made by your agent, proxy or attorney-in-fact according to your instructions.
You may also state your directions for non-health care matters such as child care, notifying your employer of your hospitalization, paying your bills while you are in the hospital, and other non-health care matters. While these matters are beyond the scope of the advance directives documents (durable power of attorney for health care and declaration for mental health treatment), you can plan for other non-health care matters in advance by creating and executing a general power of attorney to state your directions. You should consult an attorney to create and execute a general or a durable power of attorney.
Advance directives do not require your health care providers to provide kinds of health care that are not otherwise available to you through your insurance or public benefits. Advance directives documents also do not direct the kinds of treatment that your health care providers would prescribe for you according to their professional judgment. However, advance directives can give you a voice, through your agent, proxy or attorney-in-fact, to make your instructions known to your health care provider and to others involved.
As stated earlier, the declaration for mental health treatment is a relatively new document, and it is not clear how Ohio courts will interpret or enforce a declaration for mental health treatment and the principal's wishes stated in that document. Also, using the declaration limits your freedom to change your mind about (revoke) the directive. Therefore, the remainder of this booklet will focus on the well-established form of advance directives, the durable power of attorney for health care.
What else should I know about the durable power of attorney for health care?
In order to have a durable power of attorney for health care, you must complete a durable power of attorney for health care form, sign it, and have your signature either notarized or witnessed by people who meet the legal requirements to be a notary or witness. These legal requirements are stated in ORC section 1337.17. That section must be stated at the end of the durable power of attorney for health care form.
In the durable power of attorney for health care form, you name the agent you want to make health care decisions for you if you lose the capacity to make informed health care decisions for yourself. You may name alternate agents and list them in order of priority, in case your first-choice agent is unable or unwilling to serve when needed. You should name a primary agent and one or two alternate agents.
In addition to naming your agent, you may give oral and written instructions to your agent about your health care. You may tell your agent the kinds of treatment you want and the kinds of treatment you do not want and the circumstances. Your agent is required by law to act according to your wishes if your wishes are known. If your agent does not know what your wishes are, your agent is required to act in your best interests, as determined by your agent.
If you have a durable power of attorney for health care, you will continue to make your own health care decisions unless your attending physician determines that you have lost the capacity to make informed health care decisions. If your attending physician determines that you have lost the capacity to make informed health care decisions, your durable power of attorney for health care then "springs" into effect, and your agent begins making health care decisions for you.
Unless your durable power of attorney for health care document states otherwise, your agent has the same power as you would have to make health care decisions. In addition to making decisions about your health care, your agent will be informed about your proposed health care, will review your health care records, and will give or refuse consent to the disclosure of your health care records.
You should give a copy of your durable power of attorney for health care document to your agent, to your doctors, and to other health care providers. Your agent and health care providers can rely on your durable power of attorney for health care only if they are given a copy. Your health care providers must follow your agent's instructions if all of the following conditions are met:
- if your durable power of attorney for health care document has been given to them, and the document is properly executed;
- if your durable power of attorney for health care document substantially complies with all legal requirements; and
- if your health care providers have not been notified by either you or by a witness that you have revoked your durable power of attorney for health care.
You may revoke your durable power of attorney for health care at any time, even after your attending physician has determined that you lack capacity to make health care decisions.