With the recent passage of an outpatient commitment statute (Kendra’s Law) in New York, the likelihood of forced treatment may soon be a reality for some individuals. While this law may not affect the majority of mental health consumers, for many, it has underscored the importance of maintaining control over treatment decisions should they later become unable to make their own decisions. In order for consumers to best exercise control over their treatment, it is important for them to become familiar with their options under the law. This article will give an overview of both advance directives and health care proxies and provide information on how to create them.

In New York State, the law provides for the creation of both health care proxies and advance directives. A health care proxy is a document which appoints an individual to make treatment decisions on a patient’s behalf should that patient lose the capacity to make them. An advance directive is a document which specifies the type of health care to be delivered once a person has lost his decision-making capacity. Each of these documents can deal with both mental and physical health care decisions. Additionally, a person can create one document that contains both an advance directive and health care proxy within it.

Both health care proxies and advance directives can be revoked at any time by the person who has executed them. Furthermore, both of these documents are overridden by a patient’s objection to treatment after the health care proxy or advance directive becomes effective. In other words, should a person become incapacitated and wind up in the hospital, his decision to object to treatment overrides what is contained in the health care proxy or advance directive even if the person lacks the capacity to consent to treatment at the time of the hospitalization. If a person is involuntarily hospitalized and he objects to either the hospitalization or the use of psychotropic medication, he is entitled to a court hearing regardless of what is contained in his advance directive or health care proxy.

A heath care proxy or advance directive can only become effective after a doctor has decided that a patient is no longer able to make health care decisions. A person’s capacity to consent to mental and physical health care is determined by that individual’s ability to understand the nature and consequences of health care decisions, including the benefits of, risks of, and alternatives to proposed treatment in order to reach an informed decision.

There are provisions in state law which encourage the creation of both health care proxies and advance directives. State regulations prohibit a mental health care provider from refusing to treat an individual because he has executed an advance directive. Further, mental health facilities are required to notify patients of their right to execute an advance directive or a health care proxy and to assist them in creating one.

An advance directive or health care proxy remains in effect indefinitely or until it is revoked. It can be revoked by making a new one, destroying the old one or simply by stating that you have revoked it. Additionally, a date of expiration can be specified in the health care proxy or advance directive.

Health care proxies appoint an individual (called an agent) to make health care decisions should a patient become unable to make those decisions for himself. Unless a health care agent’s authority is limited in some way, the agent will be able to make any treatment decision that the patient could make if he could decide for himself. The agent must follow the oral or written instructions of the patient as well as his moral or religious beliefs. If the patient’s wishes are not known, the agent is legally required to act in the best interests of that person. It is therefore important for a patient to discuss treatment issues with the person that the patient has appointed as a proxy. Having this information ahead of time may prevent unnecessary delay or legal intervention. Additionally, there are certain health care decisions which a proxy cannot make unless he specifically knows the wishes of the person. One of these is the use of artificial nutrition and hydration (feeding tubes). The one drawback with creating only a health care proxy is that a patient is dependent on the agent to carry out his wishes. Therefore, a person may want to include an advance directive with his health care proxy.

A health care proxy form is simple to fill out and complete. Forms are distributed by the New York State Health Department. To obtain the state form you can write to the New York State Health Department, Proxy Law, P.O. Box 2000, Albany, New York 12220 or call 518/474-7354.

Advance directives are written instructions which detail a person’s choices about his mental and physical health care. These written instructions can be as detailed as the individual wishes. However, if a person has specific instructions, he should make sure they are included in the form. Certain types of instructions are legally enforceable. These include such things as which psychotropic medications can and cannot be used in treatment, whether electroshock therapy may be used, if permission is given to participate in research studies and at which institutions a person would like to be treated.

There are some things that cannot be detailed in an advance directive. An advance directive may not be used to consent to or refuse inpatient hospitalization since this is governed by the State Mental Hygiene Law. Further, although a person may detail his preference for treatment in an advance directive, these preferences are not legally enforceable. Instead, these preferences will serve as useful information for health care personnel when treatment decisions are made.

In order to ensure that the instructions in your advance directive are followed, it is important to inform your family and providers of its existence. It will be of no use if it cannot be found. Therefore, you should keep the signed original with the rest of your personal papers and also give signed copies to your family members, your doctors and the facility which may be the site for future treatment.

In order for an advance directive or health care proxy to be effective, it must be signed by the patient and witnessed and signed by two additional people who are both over the age of eighteen. If a patient executing an advance directive is an inpatient in a psychiatric facility, then one of the witnesses must be a person who has no connection to the facility and the other witness must be a psychiatrist.

Disability Advocates, Inc., in conjunction with the Peer Education Project, has put together a very helpful form with instructions. These forms are distributed by the Peer Education Project. They can be reached at 518/463-9242, or write to 291 Hudson Avenue, Albany, New York 12210. Forms for health care proxies and advance directives can also be obtained at Neighborhood Legal Services. You should contact the PAIMI program at 716/847-0650.

Anyone can assist a person with filling out the health care proxy and advance directive forms. The services of a lawyer are not needed to complete them. In Erie County, Action for Mental Health (AMH) has a peer advocate whose job is to assist mental health consumers with filling out these forms. AMH can be reached at 716/836-0822.