District of Columbia Q and A

Ten commonly asked questions about PAD’s for the District of Columbia

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 2013.

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

Yes.  The part of the District of Columbia’s Health Care Decisions 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.  Additionally, the District’s Mental Health Consumers’ Rights Protection statute allows you to document instructions about your mental health treatment. These become active at any point you are unable to make your own mental healthcare decisions.  The District of Columbia does not require you to use a specific form. The Bazelon Center for Mental Health Law has developed a PAD template that can be downloaded here.  It is a good idea to carry a card to inform others that you have a PAD.  Using the forms is not mandatory but is strongly recommended.  For further information, call University Legal Services on 202 547 4747 and ask for their Advance Mental Health Planning Workbook.

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

Yes.  You may document your choices regarding psychiatric medications and/or hospitalization, including refusals of either. A PAD template is available here.

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

No.  However, two competent adults must sign your document, affirming that you were of sound mind and free from duress when you created it.  Neither witness may be an employee of your health care provider.  Additionally, one of the two witnesses must not be related to you by blood or marriage.

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

Yes.   A PAD template is available here.

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

Yes. The general rule is that if you become incompetent to make your own choices, your agent will gain the authority to grant, refuse or withdraw consent to any health-care (including mental health care) service, treatment or procedure.  There are exceptions to this rule: see question 9 below.  Additionally to those exceptions, an agent may never consent on your behalf to abortion, sterilization or psychosurgery; an agent may consent to electro-convulsive therapy (ECT), or behavior modification programs involving adverse stimuli, but only with a judge’s permission.

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. If you have written advance instructions as well as appoint an agent, your agent must always act in accordance with those instructions.  Otherwise, your agent must follow your wishes as far as he/she knows them.  If your agent does not know your wishes, he or 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.  If you wish to do both, you should fill out both recommended forms (see above), but cross reference them to one another.

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 two physicians, one of whom must be a qualified psychiatrist or psychologist, determine that you lack the capacity to understand, choose or communicate a mental health treatment preference.  The providers must document that decision in your notes.

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, your provider may decline to follow your instructions, or those of your agent, for “good cause”.  One example of “good cause” is that a course of action is not within generally accepted standards of psychiatric care.  Second, your instructions remain subject to the law regarding involuntary commitment and/or treatment.

10.  How long does my PAD remain valid?

Your documents remain valid as long as you do not revoke them.  You may revoke them, either orally or in writing, at any time that you are not declared incompetent.  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 documents regularly.