As of January 1, 2012, the Health Care Representative you nominated in your Advance Directive has the power to consent to your physical health care, and the power to admit or retain you in a health care facility for mental health treatment. This is true even if you signed your Advance Directive long before January 1, 2012, as the legislation is retroactive. Prior to January 1, 2012, your Health Care Representative did not have the power to consent to mental health care for you.
For many, this change in legislation will have little to no impact. If you trust your Health Care Representative to make physical health care decisions for you, you are also likely to trust your Health Care Representative to make mental health care decisions for you in the event you are unable to do so yourself. On the other hand, if the fact that your Health Care Representative now has the ability to consent to mental health care for you causes concern, you should speak with your attorney about the possibility of nominating a Health Care Representative you are more comfortable with.
The expanded power to consent to mental health care may allow Health Care Representatives to quickly obtain necessary mental health care for the individuals who nominated them. In the past, it has often been necessary for the family or friends of an individual in need of mental health care to go through the public, costly and time consuming process of having a guardian appointed by the court before mental health care could be obtained for the individual. The ability of a Health Care Representative to make mental health care decisions may be a less restrictive alternative in some cases that would have previously required a court appointed guardian in order to make the same decisions.
Michelle maintains a broad practice serving clients in the areas of elder law, real estate and land use, litigation, and estate planning.
This article has been modified from its original version.