Mental Health Care Power of Attorney

A type of health care directive, a mental health care power of attorney is a written designation of an agent to make mental health care decisions for a person who is unable to do so for himself or herself.  A mental health care power of attorney can either be part of a health care power of attorney or it can be a separate document.  All the direction the principal might give for mental health care can be covered by a health care power of attorney.  However, the agent may not consent to admission to a level one behavioral health facility unless the power of attorney expressly grants such authority. The principal must authorize the agent appointed in a health care power of attorney or a mental health care power of attorney to request inpatient psychiatric care should the medical care provider determine that the principal needs such care.  Otherwise, mental health care providers may only provide such care on an emergency basis and for short duration.  The agent may not be a person directly involved with providing health care to the principal at the time the mental health care power of attorney is executed.

To be valid, a mental health care power of attorney requires the following:  the designation must be in a written document; the principal must have capacity at the time of the document’s execution; the document contains language that clearly indicates that the principal intends to create a mental health care power of attorney; the document must contain a date and signature or mark of the principal; and there must be at least one witness or one notary present at the time the principal signs or marks the document, and they attest to the fact that the principal appears to be of sound mind, and free from duress, fraud, or undue influence.  The notary or witness may not be the agent or a professional care provider directly involved with the care of the principal at the time the mental health care power of attorney is executed.  If there is only one witness, that witness shall not be related to the principal by blood, marriage, or adoption and must not be entitled to any part of the principal’s estate by will or by operation of law at the time the power of attorney is executed.   Like the health care power of attorney, if the mental health care power of attorney is witnessed by only one person, that person may not be related to the principal by blood, marriage, or adoption, and may not be entitled to any part of the principal’s estate by will or operation of law at the time the mental health care power of attorney is executed.

Under certain circumstances, a mental health care power of attorney is revocable.

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