Idaho Q and A

Ten commonly asked questions about PAD’s for Idaho

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.  Using the part of the Idaho statutes entitled Declarations for Mental Health Treatment, you may appoint an agent to make decisions about your psychiatric treatment if you become incompetent to make those decisions; write instructions about how you would like your psychiatric treatment to proceed; or both.  You need not use any particular form, as long as you comply with the witness requirements (see below) and include the wording set out in Chapter 66-613, or substantially similar language.  The Mental Health Association of Idaho and the Idaho chapter of the National Alliance for the Mentally Ill have published a guide and sample form.

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

Yes.  The statute specifies that you may make decisions about three types of mental health treatment, namely (1) psychotropic (psychiatric) medications, (2) electroconvulsive therapy and (3) hospitalization for a period of up to seventeen days.  You may not provide consent to hospitalization for a period of over seventeen days.  Within those three categories, you can write any decisions you wish, which may include decisions to refuse treatment.

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

No.  However, your document containing advanced instructions must be signed by two competent adult witnesses who know you personally, neither of whom may be your mental health care provider or his/her relative, or a relative of yours.

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

Yes.  However, your agent must not be an employee of your health care or care services provider, unless that person is also a relative of yours.

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

Yes.  Your agent may make decisions about any mental health treatment, provided you are not competent to make those decisions yourself.

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 by following your advance instructions, if you have made them, and/or by following what he or she knows to be your wishes.  If your wishes are unknown to your agent, he or she must make decisions 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?

No.  Your advance instructions and/or the authority of your agent can go into effect when two health care professionals, one of whom must be a mental health professional and the other of whom must be a physician, decide that your “ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that [you] lack the capacity to make mental health treatment decisions”.

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

Yes.  Your providers may decline to follow your PAD if they consider it to be inconsistent with “reasonable medical practice”.  In that situation, they must attempt to find other providers who would follow your PAD.  Furthermore, your providers may decline to follow your PAD if you are committed to a treatment facility under Idaho’s involuntary treatment laws, or if your condition amounts to an “emergency endangering life or health”.

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.  You may revoke your document at any time you are not judged “incapable” under the statute (see above).   A revocation is effective when communicated to your mental health care providers, either orally or in writing.  Your agent may withdraw at any time.  If your agent does so, your providers must continue to treat you in accordance with your advance instructions, if you have made them.