Maine Q and A

Ten commonly asked questions about PAD’s for Maine

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.  Two Maine laws, the Uniform Health Care Decisions Act and the less protective Medical Treatment of Psychotic Disorders allow you to write instructions about how you would like your mental health treatment to proceed through an advance health care directive.  In addition, the Uniform Health Care Decisions Act, which covers all types of health care, including mental health care, 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.  Disability Rights Maine (DRM) has published a helpful guide to advance health care directives here.

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

Yes.  Under the Uniform Health Care Decisions Act you may state that you wish to be admitted to a psychiatric facility in a crisis for a period of up to five days, even if you object at the time.  (The Medical Treatment of Psychotic Disorders Act does not place a limit on the length of time to which you may consent to be hospitalized through your PAD.)  Under both laws, you may state preferences regarding medications or hospitals.  You may also refuse hospital treatment or medications, although the law of emergency involuntary treatment will still apply.  DRM’s guide explains these topics in more detail.

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

No.  However, your form must be signed and dated by two witnesses.

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

Yes.  You may name as your agent any adult who is not incapacitated.  If you live in a nursing home or other assisted living facility, however, an employee of that facility cannot act as your agent unless he or she is also a relative of yours.

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.  Alternatively, you may limit your agent’s authority to a specific area or areas of decision making. DRM’s guide explains this topic in more detail.

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?

No.  The Uniform Health Care Decisions Act allows you to 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 PAD ordinarily takes effect when your primary physician determines that you lack capacity (meaning the ability to understand, evaluate or communicate treatment decisions).  Alternatively, you may say in your PAD that it should take effect immediately.

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

Yes.  Under the Uniform Health Care Decisions Act, your provider may decline to follow your PAD in four situations: (1) the PAD is considered by your provider to be medically ineffective or otherwise contrary to generally accepted health care standards; (2) the requested treatment is contrary to a hospital policy, which was communicated to you beforehand and is based on “conscience”; (3) you are subject to involuntary treatment under Maine law; or (4) your condition is otherwise an emergency endangering life or health.  This is one of the areas where the Uniform Health Care Decisions Act is more protective than the Medical Treatment of Psychotic Disorders Act.  Under the latter, a guardian is not required to follow your PAD in making treatment decisions on your behalf.

10.  How long does my PAD remain valid?

Your PAD is valid as long as you do not revoke it.  You may revoke your advance instructions at any time that you have not been declared incompetent, by communicating your intention to your provider.  For more information, see DRM’s guide.