Alaska Q and A

Ten commonly asked questions about PAD’s for Alaska

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.  Alaska’s Health Care Decisions Act allows you to create a PAD, known in Alaska as an “Advance Health Care Directive”.  This document allows you to specify treatment choices, appoint an agent to make decisions for you if you become incompetent, or both.  Recommended, but non-mandatory, forms are available here.

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

Yes.  The statute allows you to consent to, or refuse, any type of mental health treatment, including medications, hospitalization and electro-convulsive therapy (ECT).  However, you may not provide advance consent to hospitalization in a mental health treatment facility for a period longer than seventeen days.

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

No.  However, certain requirements apply.  You must be over eighteen years of age.  Your document must be signed and dated by you, plus either by two adult witnesses who personally know you, or by a notary.   Your health care provider, or an employee of your health care provider, cannot act as a witness, nor can the person you have appointed as an agent.  At least one of the two witnesses must not be a relative or someone entitled to a portion of your estate in your will.

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

Yes.  If you appoint an agent, he/she may make any mental health treatment choices that you could have made had you been competent, but must always act in accord with any advance instructions you have written.  His/her authority is also subject to the exceptions set out under question 9 below.

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

Yes, with certain restrictions.  He/she may not authorize your hospitalization for more than seventeen days, and may not consent on your behalf to invasive procedures such as psychosurgery unless you have made your intentions clear in writing also.

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”?   

Your agent must use substituted judgment to the extent that he/she knows your wishes.  If your agent does not know your wishes on a particular subject, he/she must act in your best interests.

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?

Yes, providing the situation is not an emergency.  If it is an emergency, it is enough that your physician or another health care provider determines that you lack competence to make the decision.  Alternatively, you may specify in your PAD the exact circumstances in which it should be followed.  Your health care provider must always tell you when the decision is made that your PAD will be implemented.

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

Yes.  The statute sets out two situations in which your providers may disregard your PAD.  First, your instructions or those of your agent may be disregarded “for reasons of conscience”.   Second, your instructions or those of your agent may not be followed if your health care provider considers them to constitute “medically ineffective health care” or “health care contrary to generally accepted health care standards”.  Finally, your PAD may not be followed in an emergency in which you are considered a danger to yourself or others.

10.  How long does my PAD remain valid?

Your Advance Directive for Mental Health is valid until you revoke it.  You may revoke it at any time, provided you are competent to do so.