Mental Health Care Power of Attorney

            If you are over the age of 18 and have mental capacity, you may designate another adult to act on your behalf with regard to making mental health care decisions if you are later unable to make them for yourself.  This designation is distinct from a durable health care power of attorney.

            A legally effective document of this nature requires 1) a written document, 2) you have capacity at the time you sign it, 3) you date and sign it, and 4) at least one witness or one notary are present at the time you sign the document and they attest to the fact that you appear to be of sound mind, and free from duress, fraud or undue influence.  When my clients execute these, there are always two signing witnesses and concurrent notary service.  It doesn’t hurt to be careful with these matters.

            The agent is authorized to make mental health care decisions when you cannot make them for yourself.  The document can place restrictions on this authority.  The authority may be revoked either by you or by court order.  Your agent may receive health information and related records in order to make appropriate decisions for you.  Your agent must act in accordance with the directive and in good faith.  Your agent is not personally liable for decisions made in good faith and under the direction of the document. 

            With the population aging and more people being diagnosed with mental health issues, it is critical for people to have these documents executed.  Who do you want making decisions for you?  A loved one, a friend, a pastor, or some stranger or politician who does not necessarily have your best interest in mind?  And don’t forget to re-execute this document at a minimum of once every five years.