Louisiana Q and A

Ten commonly asked questions about PAD’s for Louisiana

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 November 2006.

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

Yes. The Louisiana Revised Statutes, Title 28, Sections 221-236 allow you to create a PAD, known in Louisiana as an “Advance Directive for Mental Health Treatment”.  This document allows you to specify treatment choices; appoint an agent to make decisions for you if you become incompetent; or both.  A forms packet is produced by the state and is available here.  The forms in the packet are not mandatory but are highly recommended.

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

Yes.  The statute allows you to consent to, or refuse, any type of mental health treatment, including medications, hospitalization and electro-convulsive therapy (ECT).  However, you may not provide advance consent to hospitalization in a mental health treatment facility for a period longer than fifteen days.

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

Yes.  A physician or psychologist must attest to your “ability to make reasoned decisions about your mental health treatment” at the time you create your Advance Directive for Mental Health Treatment.  The statute says that “ability to make reasoned decisions” means that you are aware of your illness and situation; can understand the benefits and risks of the possible treatments; and can clearly communicate choices.  In addition, your document must be signed by two competent witnesses, who must attest that you appear to be competent at that point and were not put under any pressure to make the Advance Directive.

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

Yes.  In the Louisiana statute this person is called a “Representative”.  If you appoint a Representative, he/she may make any mental health treatment choices that you could have made had you been competent, but must always act in accord with any advance instructions you have written.  His/her authority is also subject to the exceptions set out under question 9 below.

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

Yes, as explained under question 4 above.

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 Representative must use substituted judgment to the extent that he/she knows your wishes.  If your Representative does not know your wishes on a particular subject, he/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.

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, after examining you, consider that you are unable to make or communicate reasoned decisions about your mental health treatment.

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

Yes.  The statute sets out two situations in which your providers may disregard your Advance Directive for Mental Health Treatment.   First, your instructions or those of your agent may be disregarded in an emergency, but only after your instructions have been tried without success in relieving the emergency.  Second,   your refusal of medication may be disregarded if the treating physician determines that medication is essential.  In this situation, an administrative review must be conducted by the director of the treatment facility before the medication is administered.  For more, see Chapter 230 of the statute.

10.  How long does my PAD remain valid?

Your Advance Directive for Mental Health is valid for five years, unless revoked sooner.  If you are in a period of incompetence at the five-year point, the Advance Directive remains valid until competence is regained.  You may revoke your Advance Directive in whole or part at any time that you are not declared incompetent.  All that is required for revocation is communication of that intent to your health care providers.