Editor’s Note: June is Alzheimer’s and Brain Awareness Month. In support of the educational goals behind that designation, we bring you another post designed to shine a light on the damage these diseases can inflict on families and how to avoid it.
Estate planning necessarily focuses on financial assets, property distribution, and medical care preferences. But for individuals who suffer or are at risk of developing mental illnesses, estate plans should address care for their specific needs. Importantly, just as with physical maladies, people can experience periods of mental health conditions that fluctuate over time.
Many individuals go through episodes or phases where symptoms are more intense, followed by periods of stability or remission. This is especially true for conditions such as:
- Depression: Episodes can last weeks or months and may recur throughout a person’s life.
- Bipolar disorder: Characterized by alternating periods of depression and mania or hypomania.
- Anxiety disorders: Symptoms can be triggered by stress or life events and may come and go.
- Schizophrenia and related disorders: Often involve episodic psychosis or disorganized thinking, with periods of relative clarity.
- Post-traumatic stress disorder (PTSD): Symptoms may flare up in response to triggers, even after long periods of stability.
- Addiction: People with substance use disorders may experience periods of active use, remission, and relapse. These cycles can be influenced by stress, environment, co-occurring mental health conditions or even major life changes.
This episodic nature of mental illness is why legal and medical systems—including estate planning and capacity assessments—often consider not just whether someone has a diagnosis, but whether they are currently capable of making informed decisions.
Psychiatric Advance Directives (PADs) are tools that allow individuals to specify their preferences for mental health treatment in the event of a crisis. For California attorneys, incorporating PADs into estate planning can empower clients and ensure their wishes are respected during periods of incapacity.
What Are Psychiatric Advance Directives?
PADs are legal documents that enable individuals to outline their preferences for mental health treatment should they become unable to make decisions due to a mental health crisis. These directives can include:
- Preferred medications and dosages
- Choices of treatment facilities
- Consent or refusal of specific interventions
- Appointment of a healthcare agent to make decisions on their behalf
PADs are particularly valuable for individuals with conditions such as bipolar disorder, schizophrenia, or recurrent depression, as they provide a way to retain agency even during periods of incapacity.
Legal Standing of PADs in California
In California, PADs are recognized under the state’s Health Care Decisions Law (California Probate Code §§ 4600–4806). This law allows individuals to create advance directives for healthcare, including mental health treatment. Attorneys should be aware of the specific requirements for PADs, such as:
- The directive must be in writing and signed by the individual.
- It must be witnessed by two adults or notarized.
- The appointed healthcare agent must accept the role in writing.
Practical Use in Estate Planning
Incorporating PADs into estate planning involves several steps:
- Educating Clients: Inform clients about the benefits of PADs and how they can protect their mental health preferences.
- Drafting the Directive: Work with clients to draft a clear and comprehensive PAD.
- Integrating with Other Documents: Ensure the PAD aligns with durable powers of attorney and living wills.
- Review and Update: Regularly revisit the PAD to reflect changes in the client’s condition or preferences.
Client Conversations
When discussing estate planning, attorneys can introduce PADs by:
- Asking about mental health history or concerns.
- Explaining how PADs safeguard treatment preferences.
- Sharing real-world examples of PADs in action.
- Offering assistance in drafting and executing the directive.
Conclusion
Mental health is a critical aspect of estate planning that should not be overlooked. By incorporating PADs into their practice, California attorneys can offer clients a more comprehensive and compassionate approach to healthcare planning. Educating clients, drafting clear directives, and integrating them with other estate documents ensures their wishes are honored during times of crisis.
For more information, refer to California Probate Code §§ 4600–4806 and/or consult with mental health professionals to provide the best guidance for your clients.