As medical science catches up to caring for both mind and body in equal measures, the law is firmly set in evaluating the two parts separately. As such even if you can physically sign, if you are mentally unfit or ‘lack capacity’ you will lack standing to make legal decisions, even those about your physical and mental health treatment. Some of these issues can be addressed by signing your estate plan while you do have capacity, so you can plan ahead for your mental and physical health treatment.

Making your Powers of Attorney ‘Durable’ will prevent many problems if you begin to experience mental health problems, including dementia. A ‘durable’ power of attorney means that the powers vested in the document endure regardless of your mental state, until your death. You can also make your care preferences clear in your Advance Health Care Directive. Advanced Health directives only apply when you are terminally ill and unable to speak for yourself or permanently unconscious.

While your Advance Health Care Directive allows you to inform your representative and treatment team of your desires for your end of life in advance, they do not specifically address mental health problems such as dementia, where your mental health has declined but your physical body has not. Washington has created a Mental Health Directive in 2003 that addresses mental incapacity to make medical decisions without being terminally ill or in a permanent unconscious state. The Mental Health Directive also allows it to take effect when determined to be mentally incapacitated rather than the permanent unconscious state, under a specific diagnosis, or when specific symptoms or behaviors begin to occur.

The Mental health directive allows for treatment decisions based on any organic, mental, or emotional impairment which has substantial adverse effects on an individual’s cognitive or volitional functions. This specifically could address the situation of mentally incapacitated, but not terminally ill, but limits the direction to only applying to mental health medication and treatment, not life sustaining treatment. Because there is a clear line between mind and body treatment directives and the mental health directive does not allow for withholding of life sustaining treatments, it does allow withholding of mental health treatments altogether, or limitations on what kind of treatments, who should be allowed to visit, and allows for nomination of a referred guardian should a guardianship proceeding be necessary. You can also draft this directive so that it can be revoked only when you have capacity, or at any time, even if you are incapacitated. It also allows for the nomination of an agent to represent the mental health care treatment.

If you have questions or concerns about advanced health care directives or estate planning, call Limitless Law PLLC at (360) 685-0145 or use the “Ask an Attorney” link on our website to contact us today!

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