Psychiatric Advance Directives: How to Put Your Treatment Wishes in Writing

What is a psychiatric advance directive?

It is your treatment plan, written by you, for a time when you may not be able to speak for yourself.

Some mental health conditions can, during a severe episode, affect a person’s ability to understand their options or communicate what they want. A PAD lets you make those decisions in advance, while you are well, and puts them in a form clinicians are expected to see.

It is not the same thing as a safety plan. A safety plan is a personal list of steps you take to get through a crisis. A PAD is a legal document that tells clinicians and family what treatment you want, and who speaks for you, if a crisis takes that ability away. Many people benefit from having both.

What can a PAD include?

It depends on the state, but common entries include:

• Medications that have worked for you, and ones that have not or that caused bad side effects
• Which hospitals or treatment settings you prefer, and which you want to avoid
• Your consent to, or refusal of, specific treatments, within what your state allows
• What tends to help when you are in crisis, such as a quiet room or a particular person, and what makes things worse
• Who should be contacted, and who should not
• Who will look after your children, pets, home, or bills while you are in care
• A named agent who can make treatment decisions for you if you lose the capacity to make them

Is a PAD legally binding?

Usually yes, with limits. In states with PAD laws, clinicians are generally expected to follow a valid PAD. Most of those laws also let a clinician depart from it in specific situations, such as an emergency, a treatment that is not medically appropriate or available, or a conflict with a court order or an involuntary commitment. Some states require the clinician to document the reason when they do not follow it.

A PAD cannot force a hospital to provide a treatment it does not offer, and in most states it cannot by itself stop an involuntary commitment that meets the state’s legal standard. It can still shape what happens once you are in care.

None of that matters if no one in the emergency room knows the document exists. Getting copies to the right people is part of making a PAD, not a step to get to later.

How states differ

The National Resource Center on Psychiatric Advance Directives counts 25 states with a statute written specifically for psychiatric advance directives (as of its January 2024 update). It keeps a state-by-state list with the relevant laws and forms. In states without a dedicated PAD law, people generally use the state’s standard health care advance directive or health care power of attorney and write their mental health wishes into it.

The things that vary from state to state include:

• How many witnesses are needed, whether a notary is required, and who is not allowed to serve as a witness
• Whether you can choose in advance that the directive cannot be revoked during a crisis
• How long the document lasts before it must be renewed
• What triggers it: usually a determination by a clinician that you lack capacity to make treatment decisions

Because of these differences, use your state’s own form and instructions where one exists, and check its signing rules before you sign. If your situation is complicated, a legal aid office or your state’s protection and advocacy agency may be able to help.

An example: New Jersey

New Jersey has a dedicated law, the New Jersey Advance Directives for Mental Health Care Act. The state’s Division of Mental Health and Addiction Services publishes an approved form and instructions. The directive must be signed and dated in front of at least one adult witness. The person you name as your representative and the clinician treating you cannot be witnesses. If your only witness is a relative, a domestic partner, someone you live with, someone who would inherit from you, or staff at a boarding home or residential facility where you live, a second witness is required.

New Jersey also runs NJPAD, an online registry launched in June 2019, where people can store their directive so that authorized clinicians can look it up. Licensed clinicians and certified mental health screeners at designated screening services can be given access. State rules require New Jersey’s state psychiatric hospitals to ask each patient at admission whether they have a directive. Not every hospital or crisis team will check the registry, so give copies directly to the people who will need them.

How to make one

1. Find your state’s rules and form. Start with the National Resource Center on Psychiatric Advance Directives state list, or your state’s mental health agency.
2. Write it while you are well. Most states require that you have capacity when you sign. Some people ask their psychiatrist or therapist to confirm this in writing at the time.
3. Talk to the person you name as your agent. Make sure they are willing, understand your wishes, and can be reached.
4. Sign it the way your state requires, with the right number and kind of witnesses, and a notary if needed.
5. Get it to the people who need it: your agent, your clinicians, your preferred hospital, and your state registry if there is one.
6. Review it after every crisis and whenever your medications, clinicians, or preferences change.