Hawaii Q and A

Ten commonly asked questions about PAD’s for Hawaii

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.  Chapter 237G of the Hawaii statutes allows you to write instructions for your psychiatric treatment in the event that you are incapable to make or communicate those instructions.  It also allows you to appoint an agent to make instructions for you. The Hawaii Disability Rights Center has produced a recommended form, plus accompanying instructions and information, available here.

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

Yes.  You can make choices about both medications and hospitalization, including refusals of consent.  You may also make choices about matters other than your treatment, for example what arrangements should be made for your children and/or pets in the event that you are unable to take care of them.

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

No.  However, you must put them in writing.  The document containing your instructions must then be either notarized or signed by two witnesses.  The witnesses must be people other than your relatives, health care providers or beneficiaries of your estate.

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

Yes.  Your agent must be someone other than a healthcare provider, unless that person is a relative.

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

Yes, in general.  If you become incompetent to make a particular decision about medication or hospitalization, your agent can make that decisions for you, which might include a decision not to accept the treatment being offered.  Please note that your mental health care provider may decline to follow your agent’s instructions in certain situations (see question 9 below).

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 make all decisions in accordance with the preferences you have expressed in any advanced instructions you have made, or in accordance with what he or she knows to be your preferences.  If your agent does not know what you would decide, he or she must make decisions in your best interests, taking into account your personal values.

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 or 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.  Your agent’s power to make decisions and/or your advanced instructions go into effect when your supervising physician, plus one other physician or psychologist, decides you are incapable of making the decision.  The physicians must make a note in your medical record that they found you to be incompetent at that time, and must notify your agent, if you have one.

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

Yes.  Your mental health care providers may decline to follow your instructions, or those of your agent, if you are thought to pose an imminent threat to your safety or that of others.  Furthermore, a court-appointed Guardian’s instructions can take priority over your instructions or those of your agent if they are approved by a court.  Finally, health care providers could decline to follow your instructions, or those of your agent, if you are otherwise hospitalized or medicated under Hawaii’s involuntary treatment laws.

10.  How long does my PAD remain valid?

The document containing your instructions and/or agent nomination is valid as long as you do not revoke it or make a new document. The statute says that you may revoke all or part of your document at time, by doing any act that implies you wish to revoke it.  However, you may alternatively state on your document that your instructions, or those of your agent, should always be valid when you are not competent, even if you try to revoke your instructions or the agent’s authority during that time.  This is known as a “Ulysses clause”.  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.