Colorado Q and A

Ten commonly asked questions about PAD’s for Colorado

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 July 2019.

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

Yes.  Colorado’s Medical Durable Power of Attorney statute allows you to appoint an agent to make health care decisions for you in the event that you become unable to make those decisions yourself.  These decisions could be about any type of health care, including mental health care.  In appointing an agent, you may wish to specify how he/she should make decisions by documenting preferences about your mental health treatment.  There is no official form for appointing an agent, but you must create a written document.  A helpful example of a form, which you may wish to use or adapt, is available here.

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

Yes, but not in a freestanding document.  If you want to specify instructions about medications or hospitalization, including refusals of either, they must take the form of instructions to your agent.  You should include them on your Medical Power of Attorney document (see above); you should also thoroughly discuss your wishes with your agent.

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

No.  However, it is a good idea to have your Medical Power of Attorney document be signed and dated by one or more competent adults.

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

Yes, as explained above.

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

Yes, subject to the exceptions discussed under question 9 below.  In general, if you are determined to be incompetent, your agent may make decisions about any health care issue that you could decide on if you were competent.  However, you may choose to limit your agent’s authority to a certain type, or types, of decision.  If you wish to do this, you should document it clearly on your form and discuss it thoroughly with your agent.

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 exercise substituted judgment to the extent that he or she can do so, based on your advance instructions and/or on your preferences as known by the agent.  If it is not possible to make a decision in that way, your agent must make the decision 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?

Yes.  As described above, the Colorado statutes do not allow consumers to make instructions alone, with the important exception of decisions about life-sustaining treatment.  Mental health consumers must appoint an agent in order to engage in advance decision making.

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 specify how incompetence is to be assessed; in practice, your agent’s authority would normally begin at the point your treating physician determines that you are not able to make your own mental health care decisions.  If you wish your agent’s authority to begin at a different point, you may specify that on your Medical Power of Attorney document.

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

Yes.  There are two important exceptions to the general rule that your providers must follow your agent’s instructions.  First, if you become subject to involuntary treatment or hospitalization under Colorado law, your providers are no longer required to follow your agent’s instructions.  Second, your provider must treat you in a “medically appropriate” way at all times.  Therefore, if your agent’s instructions were not considered “medically appropriate”, your provider could decline to follow them.

10.  How long does my PAD remain valid?

Your Medical Power of Attorney is valid as long as you do not revoke it.  You may revoke it at any time; your agent may also decide to cease acting for you at any time.  Your Power of Attorney automatically becomes invalid in the event of a legal separation or divorce if your spouse is named as your agent.  It is a good idea to review and update your Power of Attorney regularly.