Drafting a Psychiatric Advance Directive in Pennsylvania: Rights, Refusals, and Mental Health Holds

Dealing with a severe mental health crisis is terrifying, both for the person experiencing it and for their loved ones. When someone is in the middle of a psychiatric emergency, they often lose the ability to make clear decisions about their treatment. Unfortunately, standard medical POAs focus on things like life support or physical surgeries, ignoring psychiatric care. Pennsylvania recognized this gap and created a specific legal tool called a Mental Health Advance Directive (MHAD). This document empowers you to dictate your psychiatric treatment while you are healthy, ensuring your voice is heard even when you are not able to speak for yourself. If you want to draft an airtight directive, checking our US Lawyer Directory for a Pennsylvania attorney is a great first step.

Step-by-Step Guide to PA Mental Health Advance Directives

In Pennsylvania, Mental Health Advance Directives are governed by Act 194. This law gives you incredible control over your future psychiatric care, but it must be drafted correctly to be enforceable. Here is a breakdown of how the process works and where limitations apply.

Step 1: Understand Act 194 and the MHAD

Under 20 Pa.C.S. § 5821 and 20 Pa.C.S. § 5831, any competent adult in Pennsylvania can create a Mental Health Care Declaration or designate a mental health power of attorney. This is completely separate from a standard physical healthcare directive. The MHAD specifically addresses psychiatric treatments, facility admissions, and psychotropic medications. It only goes into effect if a doctor determines you lack the capacity to make mental health decisions.

Step 2: Choosing Consent vs. Refusal

The most powerful part of an MHAD is the ability to outline exactly what you will and will not accept. You can pre-consent to specific medications that have worked for you in the past. More importantly, you can strictly refuse certain treatments. For example, many people use their MHAD to explicitly refuse Electroconvulsive Therapy (ECT) or specific antipsychotic drugs that cause them severe side effects. You can also specify which psychiatric hospitals you prefer to be admitted to, and which ones you refuse to enter.

Step 3: Appointing a Mental Health Agent

In addition to leaving written instructions, you can utilize the statutory declaration and proxy form codified under 20 Pa.C.S. § 5808 to appoint a specific person as your mental health agent. This person will have the legal authority to talk to your psychiatrists, access your mental health records, and make decisions based on the instructions you left behind. It is highly recommended to choose someone who deeply understands your mental health history.

Step 4: The Impact of an Involuntary 302 Commitment

There is a massive limitation to your MHAD that you must understand. If you become a danger to yourself or others, a doctor or police officer can place you under an involuntary psychiatric hold. In Pennsylvania, this is known as a "302 commitment" under 50 P.S. § 7302 of the Mental Health Procedures Act. The Pennsylvania Supreme Court addressed these high-stakes involuntary commitments in In re J.M., 556 Pa. 63 (PA Supreme Court 1999), establishing strict rules for patient rights. If you are involuntarily committed, a doctor can override your MHAD if they believe your refused treatments are absolutely necessary to save your life or prevent severe harm.

Step 5: Drafting and Witnessing Requirements

To make your MHAD legal, you must sign it while you are clearly competent. Pennsylvania law requires that your signature be witnessed by two adults. Notably, your appointed mental health agent cannot be one of the witnesses. Your doctor or employees of the psychiatric facility where you receive care also cannot serve as witnesses. If disputes arise over the validity of the document, they are typically handled in a court like the Court of Common Pleas of Bucks County, Orphans' Court Division, Doylestown.

How Much Does it Cost in Pennsylvania?

Creating an MHAD is very affordable and accessible for most Pennsylvanians:

• Free State Forms: The Pennsylvania Department of Human Services, Harrisburg provides free, fillable templates online that meet all state requirements. You pay nothing to use them.
• Attorney Fees: If you want a lawyer to customize a complex directive integrating both physical and mental health POAs, expect to pay a flat fee ranging from $250 to $600.
• Notary Fees: While not strictly required if you have two witnesses, having the document notarized adds an extra layer of legal safety and usually costs about $10 to $20.

How Long Does it Last?

Once signed, a Pennsylvania Mental Health Advance Directive remains valid for exactly two years. After two years, it automatically expires and you must sign a new one. However, if you are actively undergoing psychiatric treatment or lack capacity when the two-year mark hits, the directive remains in effect until you regain capacity.

Medical POA vs. Psychiatric Advance Directive

Frequently Asked Questions (FAQ)