Alabama Q and A

Ten commonly asked questions about PAD’s for Alabama

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice. These answers are accurate as of September 2019.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  The Alabama Durable Power of Attorney Act allows you to appoint an agent to make healthcare decisions for you if you become incompetent to make those decisions yourself.  Healthcare decisions may include decisions about mental health. The statutes include a form called the “Advance Directive for Health Care”.  You do not have to use that exact form, but it is advisable to do so.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

The “Advance Directive for Health Care” form is primarily concerned with end of life decisions, which generally would not include mental health situations.   However, the statutes allow you to include “other directions” on your form, which could include directions about your mental health treatment.  If you wish to write advance instructions about psychiatric medications and/or hospitalization, it is advisable to write a separate document which sets out your wishes clearly, and to attach that document to your form.  If you do this, you should make sure the document is witnessed and signed along with the rest of the form.  The form will still be valid if you leave the end of life sections blank.

3.  Does anyone have to approve my advance instructions at the time I make them?  

No.  However, your form or other document must be signed by two witnesses, neither of whom may be a relative or your agent.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes, as outlined above.  To do so, you must state on your form or other document that your agent may make decisions for you when you become incompetent to make them yourself.  It is advisable to use the following words: “This power of attorney shall become effective upon the disability, incompetency or incapacity of the Principal”.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  Your agent can make any health care decision that you could have made if you were able to, with certain exceptions, including psychosurgery.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”? 

If you decide only to appoint an agent, the statute does not say how the agent must act.  If you have written advanced instructions as well as appointing an agent, the “Advance Directive for Health Care” form allows you to choose from three options: (1) your agent is limited to giving the instructions you have written; (2) your agent may make decisions only in situations not covered by your instructions; or (3) your agent may make “final decisions”, even if they conflict with your instructions.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  All that is required is that your mental health care providers believe you are incompetent to make the decision.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Your mental health care providers could decline to follow your instructions or those of your agent if the instructions concerned one of the excluded types of treatment, or if you were hospitalized or medicated under Alabama involuntary treatment laws.

10.  How long does my PAD remain valid?

The document appointing your agent is valid until revoked.  It may be revoked in writing by you or someone else directed by you.  If you destroy or deface it, it will also be assumed to be revoked.  If you appoint your spouse as your agent, he or she would no longer be a valid agent if you became divorced or legally separated after you wrote the document.  In that situation, you would need to amend the document to clarify who should be your agent.