Psychiatric Advance Directives in Vermont: Empowering Mental Health Patients

Experiencing an acute psychiatric crisis-whether triggered by bipolar I mania, severe major depression, or schizophrenia-often strips away a person's ability to communicate clearly with emergency room doctors at the exact moment crucial treatment choices are made. Without advance legal documentation, patients admitted to facilities like the Vermont Psychiatric Care Hospital in Berlin, the Brattleboro Retreat, or the University of Vermont Medical Center in Burlington may face traumatic involuntary commitment hearings or receive psychotropic medications that previously caused severe adverse side effects.

Vermont boasts one of the most progressive, patient-centered statutory frameworks in the United States for mental health self-determination. Rather than separating physical and mental health into disconnected statutes, 18 V.S.A. § 9701(12) defines 'health care' to encompass any treatment, service, or procedure to maintain, diagnose, or treat both physical and mental conditions. Through a properly executed Vermont Advance Directive, individuals can exercise complete control during periods of wellness over how they will be treated during future episodes of incapacity-including the power to pre-consent to or refuse specific psychotropic drugs, electroconvulsive therapy (ECT), and short-term inpatient hospitalization.

Understanding Psychiatric Advance Directives and 'Ulysses Clauses' in Vermont

Under 18 V.S.A. § 9702(a)(5), any adult with capacity may execute an advance directive directing the exact type of mental health care desired or rejected, including preferred hospitals, de-escalation techniques, crisis contacts, and specific medications. However, standard advance directives across the country suffer from a major vulnerability in mental health crises: if a patient in an acute manic or psychotic state verbally objects to treatment or demands to revoke the directive, doctors in many states cannot administer care without going to court.

Vermont solves this dilemma through 18 V.S.A. § 9707(h), universally known as the Ulysses Clause (named after the Greek hero who instructed his crew to bind him to the ship's mast and ignore his pleas when sailing past the Sirens). By executing a Ulysses clause while competent, a principal knowingly and voluntarily waives the right to object to or request specific treatments during a future period of incapacity. Under 18 V.S.A. § 9704(b)(3), unlike standard advance directive provisions that can be revoked at any time regardless of mental state, a Ulysses clause executed under 18 V.S.A. § 9707(h) may be suspended or revoked only if the principal has capacity, as verified in writing by a clinician.

Bipolar Disorder and Acute Psychosis Crisis Planning

For individuals living with bipolar disorder or schizoaffective disorder, manic or psychotic episodes follow predictable clinical patterns. During a period of stability, a patient knows exactly which mood stabilizers or atypical antipsychotics restore their equilibrium rapidly and which neuroleptics trigger intolerable side effects such as akathisia or dystonia. Using Form VADR-2, Vermont, Department of Health, Advance Directive for Health Care (Long Form) or the specialized psychiatric form published by Disability Rights Vermont, patients can document a binding clinical roadmap:

• Medication Pre-Consent and Refusal: Patients can explicitly authorize first-line medications (e.g., Lithium or Lamotrigine), prohibit specific drugs (e.g., Haloperidol or Prolixin), and state binding rules regarding electroconvulsive therapy (ECT). Note that under 18 V.S.A. § 9707(h), experimental treatments can never be authorized via a Ulysses clause.
• The 10-Day Voluntary-By-Proxy Admission Rule: Under the Ulysses clause provisions of 18 V.S.A. § 9707(h), a patient can empower their health care agent to consent to inpatient admission at a designated psychiatric facility for no more than 10 calendar days-even over the patient's acute objection-if an examining staff physician certifies in writing that the patient has a mental illness, lacks capacity to make an informed admission decision, and requires inpatient stabilization. This allows early intervention without the stigma and delay of an involuntary commitment order.
• Trauma-Informed De-Escalation Instructions: Patients can specify alternatives to physical restraints or seclusion, sensory accommodations, and emergency family notification rules.

Selecting and Empowering a Specialized Mental Health Proxy

You cannot execute a Ulysses clause under 18 V.S.A. § 9707(h) without appointing a health care agent. Choosing the right mental health proxy requires careful discernment. Under 18 V.S.A. § 9702(c), your health care agent must be an adult at least 18 years old and cannot be your treating clinician or an employee of the hospital or residential facility where you are receiving care (unless they are a blood relative).

When selecting a mental health proxy in Vermont, patients should pick a trusted partner, family member, or peer advocate who understands their baseline personality, is willing to advocate firmly with hospital psychiatrists, and agrees in writing to accept the heightened responsibility of authorizing or withholding care over the patient's objection during a crisis. Under 18 V.S.A. § 9702(a)(9), you may also explicitly list individuals (such as estranged relatives) whom your agent is prohibited from consulting or sharing HIPAA information with during your hospitalization.

How Vermont Hospitals and Courts Are Legally Bound to Follow Directives

Vermont's judiciary and federal courts have repeatedly struck down attempts to weaken psychiatric advance directives. In the landmark federal appellate ruling Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003), the Second Circuit Court of Appeals affirmed that the Americans with Disabilities Act (ADA) prohibits the State of Vermont from overriding the validly executed advance directives of involuntarily committed psychiatric patients on unequal terms compared to non-psychiatric patients.

Following Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003), the Vermont Legislature enacted 18 V.S.A. § 7626 to govern involuntary medication petitions brought by the Vermont Department of Mental Health, Waterbury in the Family Division of the Superior Court (such as the Vermont Superior Court, Windham Unit, Family Division, Brattleboro or the Vermont Superior Court, Washington Unit, Family Division, Barre). Under 18 V.S.A. § 7626(a), if a hospitalized patient has a valid Advance Directive, the court must suspend the involuntary medication hearing and enter an order following the instructions in the Advance Directive (or the decisions of the designated agent) for a protected 45-day clinical period.

Moreover, the Vermont Supreme Court strictly enforces patient autonomy in these proceedings. In In re G.G., 224 A.3d 494 (VT Supreme Court 2019), the Vermont Supreme Court affirmed that the Family Division possesses jurisdiction to determine the threshold validity of an Advance Directive within an involuntary medication proceeding, but reversed an involuntary medication order because the state failed to present sufficient evidence that the patient lacked decision-making capacity when executing the directive refusing antipsychotic medication. Furthermore, in In re I.G., 203 Vt. 61 (VT Supreme Court 2016), the Court held that even when a patient's written statement refusing psychiatric medication lacked the two witness signatures required for a formal advance directive, the trial court was still legally required under 18 V.S.A. § 7627(b) to evaluate and honor the patient's 'competently expressed written preferences.'

Step-by-Step Process in Vermont

Creating an enforceable Psychiatric Advance Directive-with or without a Ulysses clause-requires strict adherence to Vermont's statutory execution rules so hospitals cannot question its validity.

Step 1: Complete the Vermont Long Form or DRVT Psychiatric Form

Download Form VADR-2, Vermont, Department of Health, Advance Directive for Health Care (Long Form) or the Disability Rights Vermont Advance Directive for Health Care. Detail your specific mental health treatment goals, preferred psychiatric facilities, crisis de-escalation steps, and exact psychotropic medications you consent to or refuse.

Step 2: Obtain Written Acceptance from Your Health Care Agent (For Ulysses Clauses)

If you choose to include the optional Waiver of Right to Request or Object to Future Treatment under 18 V.S.A. § 9707(h), your designated health care agent (and any alternate agent) must sign the specific Ulysses clause acknowledgment confirming they accept the responsibility of authorizing or withholding specified treatments over your objection when you lack capacity.

Step 3: Secure Attestations from Your Clinician and an Independent Explainer

Because a Ulysses clause waives a fundamental constitutional right, 18 V.S.A. § 9707(h)(1) imposes two heightened safeguards beyond a normal directive:

1. Clinician Attestation: Your psychiatrist, primary care physician, APRN, or PA must sign an affirmation stating they reviewed the proposed mental health treatments with you and confirmed that you understand the clinical risks, benefits, and alternatives.
2. Independent Explainer Affirmation: An authorized neutral individual-such as an ombudsman, mental health patient representative, licensed attorney, or recognized explainer under 18 V.S.A. § 9707(h)(1)(D)-must explain the nature and legal effect of the Ulysses clause to you and sign an attestation that you appear to understand the waiver and are free from duress or undue influence. Under 18 V.S.A. § 9703, remote audio-video witnessing and explanation procedures are permanently permitted when statutory conditions are met.

Step 4: Sign Before Two Qualified Adult Witnesses

Sign and date the directive in the presence of two adult witnesses (18 or older) pursuant to 18 V.S.A. § 9703(a). If you are currently admitted to or being admitted to a hospital or residential facility at the time of signing, 18 V.S.A. § 9703(d) requires an additional signature from an ombudsman, mental health patient representative, attorney, or clergy member affirming they explained the directive's effect to you.

Step 5: File with the Vermont Advance Directive Registry (VADR)

Submit your completed directive along with Form VADR-REG, Vermont, Department of Health, Vermont Advance Directive Registry Agreement and Authorization to Change Form to the Vermont Department of Health, Burlington. Under 18 V.S.A. § 9706 and 18 V.S.A. § 9711, Vermont hospitals are legally obligated to check the registry upon admission and incorporate your directive into your medical record.

How Much Does it Cost in Vermont?

Executing and registering a Psychiatric Advance Directive in Vermont is designed to be accessible to all residents:

• Official State Forms and VADR Registration ($0): Obtaining the Long Form and registering your psychiatric directive with the Vermont Department of Health, Burlington costs $0.
• Mental Health Patient Representative / Explainer Assistance ($0): Hospital patient representatives, ombudsmen, and peer specialists at organizations like Vermont Psychiatric Survivors or Disability Rights Vermont provide statutory explanations under 18 V.S.A. § 9703(d) and 18 V.S.A. § 9707(h) at no cost.
• Clinician Consultation ($0 to $50 Copay): Having your psychiatrist or primary care clinician review and sign a Ulysses clause typically takes place during a standard outpatient appointment, costing only your standard insurance copay of $0 to $50.
• Private Vermont Health Care Attorney Fees ($300 to $800): Hiring a private Vermont lawyer to draft customized psychiatric instructions, act as the statutory legal explainer under 18 V.S.A. § 9707(h)(1)(D), and add a 18 V.S.A. § 9702(a)(10) Probate Court challenge-restriction clause typically costs between $300 and $800.
• Probate Court Review Petitions ($150): If a dispute arises requiring a petition to review, enforce, or challenge an advance directive in the Vermont Superior Court, Chittenden Unit, Probate Division, Burlington or another county unit under 18 V.S.A. § 9718, standard probate filing fees of up to $150 under 32 V.S.A. § 1434 apply unless waived for financial hardship.

How Long Does the Process Take?

A standard Psychiatric Advance Directive (without a Ulysses clause) can be drafted, witnessed by two adults, and become legally effective in 1 to 2 days. Because a Ulysses clause under 18 V.S.A. § 9707(h) requires coordinating signatures from your health care agent, your treating clinician, and an independent explainer, completing a Ulysses clause typically takes 1 to 3 weeks depending on your psychiatrist's appointment schedule.

Once submitted to the Vermont Advance Directive Registry (VADR), electronic indexing takes approximately 3 to 7 business days. During an inpatient psychiatric hospitalization where the state files Form MH-7624, Vermont, Department of Mental Health, Application for Involuntary Medication, a valid Advance Directive triggers an immediate 45-day statutory suspension of involuntary court-ordered medication under 18 V.S.A. § 7626(c) while your directive's instructions are followed. To protect your medical autonomy and ensure your psychiatric directive is bulletproof against hospital challenges, consult a qualified Vermont health care or mental health attorney from our directory.

Frequently Asked Questions (FAQ)