Minnesota Q and A

Ten commonly asked questions about PAD’s for Minnesota

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.  The statute allows you to appoint an agent (“proxy”) to make decisions about your “intrusive mental health treatment” if you become incompetent to make decisions; to write instructions about how you would like any “intrusive mental care” to proceed (“a declaration”); or both.  “Intrusive mental health treatment” means treatment with neuroleptics (antipsychotic drugs) or convulsive therapy (ECT).  There is no mandatory form as long as you comply with the correct witness requirements (see question 3).

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

You may write advance instructions about neuroleptic medications, including refusals.  The statute does not give you the power to make hospitalization decisions in advance, although any wishes you document may influence the decisions of your providers.

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

No.  However, your advanced instructions must be contained in a written document and signed by you and two adult witnesses.  The witnesses must write statements that they believe you “understand the nature and significance of the declaration”.  You must then deliver the declaration to your health care provider.

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

Yes.

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

Your proxy may make decisions about neuroleptic medications, including refusals.  The statute does not give your proxy the legal power to admit you to a hospital.  It may nonetheless be helpful to discuss your wishes with your proxy so that he/she may confer with your clinicians.

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 or on wishes you have otherwise expressed.

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 as regards “intrusive mental health treatment” (see above).

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.  Once duly delivered to your providers, your declaration is followed whenever you are “incapable of informed consent”.  In practice, this occurs when your clinicians decide that you are unable to understand and/or assess information about mental health treatment choices.

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 declaration: (1) if it is inconsistent with “reasonable medical practice”, inconsistent with the law, or unavailable, or (2) if you have been committed for treatment and a court order to that effect has been issued.

10.  How long does my PAD remain valid?

Your declaration remains valid as long as you do not revoke it.  You may revoke your declaration at any time you have not been declared incompetent.  It is a good idea to review your documents regularly.