Arkansas Q and A

Ten commonly asked questions about PAD’s for Arkansas

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.  The answers were accurate when written in October 2006.

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

Yes, by appointing a health care agent under Arkansas’ Durable Power of Attorney for Health Care Act.  If you become unable to make decisions for yourself, your agent can make any health care decision for you, which could include decisions about mental health treatment.  You must appoint your agent in a written document which must be signed by you, the agent, and two competent witnesses over the age of eighteen.  The Arkansas Bar Association has published a Durable Power of Attorney for Health Care form, which is useful but is not mandatory as long as you comply with the witness requirements.

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

The Arkansas statute does not allow you to create a freestanding document for your mental health treatment wishes.  However, you may wish to specify the choices you would like your agent to make on your behalf.  A good way to do this would be to discuss your choices carefully with your agent, document them clearly and attach them to your Durable Power of Attorney for Health Care form, making sure they are witnessed along with the form.

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

No.  However, your Durable Power of Attorney for Health Care form must be witnessed by two competent adults.

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

Yes.

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

Yes.  The general rule is that your agent can make decisions for you about any aspect of your health care, including mental health care, at times when you are unable to make them yourself.  This may include refusals of medication or other hospital treatment.  One exception to this rule is that your agent cannot make decisions about life-sustaining treatments, which are covered by a separate statute.  Another important exception is that your providers may disregard your agent’s instructions if you are considered dangerous, or otherwise in an emergency.

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”?

The statute does not specify how your agent must act, although on general principles your agent should follow your desires as much as he/she can.  The best way to ensure that your agent understands your preferences is to discuss them fully with him/her.

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

Yes.  As explained above, the Arkansas statutes do not allow you to create freestanding instructions. Therefore you must appoint an agent if you wish to create a PAD, whether or not you add specific instructions to your documentation.

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.  The statute does not formulate any procedure which must be followed before your agent’s authority goes into effect, but in practice it would usually begin when your mental health care providers believe that you are unable to make decisions for yourself.

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

No.  However, if your mental health care providers considered you a danger to yourself or others, it is likely that you could be treated contrary to your agent’s instructions.

10.  How long does my PAD remain valid?

The statute does not say how long the document nominating your agent remains valid.  It is likely to remain valid as long as you do not revoke it by making a new document or by indicating that you wish it to be cancelled.  If you appoint your spouse as your agent, he or she might not be regarded as a valid agent if you became divorced or legally separated after you wrote the document.  In that situation, you should amend your document to clarify who should be your agent.