Mississippi Q and A

Ten commonly asked questions about PAD’s for Mississippi

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, by appointing an agent.  Mississippi’s Uniform Health Care Decisions Act allows you to appoint an agent to make health care decisions for you if you become incompetent to make those decisions yourself.  Health care decisions may include decisions about mental health.  Although not mandatory, it is highly recommended that you use Mississippi’s statutory form to appoint your agent and/or write instructions.

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

The Mississippi statutes do not allow you to write advance instructions for your psychiatric care in a freestanding document.  However, if you appoint an agent, you may wish to specify how you would like that person to make decisions for you.  If there are particular matters that you wish your agent to make clear to your treating physicians, it is advisable to discuss them with your agent and document them clearly in part 2 of the statutory form.

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

No.  However, your form must be signed by two adult witnesses who know you personally, and who must declare that you were of “sound mind” and not under duress when you created the document.  Neither witness may be an employee of your health care provider or facility, and no more than one may be a family member.  Alternatively, you may have the form notarized.

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

Yes, as outlined above.

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

Yes.  The general rule is that your agent may consent or refuse any medical treatments or procedures on your behalf when you are incompetent to make decisions yourself.  However, you may choose limit your agent’s authority in part 2 of the statutory form as indicated there: for example, you may wish to decline electroconvulsive therapy (ECT) in all circumstances.

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”? 

The statute says that the agent must make decisions in accordance with any individual instructions you have made, and in accordance with what he/she otherwise knows about your wishes.  If your wishes on a particular matter are unknown, your agent 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?

Yes.  As explained above, it is not possible to write advance instructions only.  If you wish to create a PAD, you must appoint an agent, but the extent to which you also document your decisions is up to you.

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.  The statute states that your PAD becomes effective when your primary physician determines that you lack the ability to understand the risks, benefits and alternatives of the proposed treatment.

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

Yes.  Your provider may decline to follow your instructions, or those of your agent, for “reasons of conscience”, or if he/she considers that the instruction “requires medically ineffective health care or health care contrary to generally accepted health care standards”.  If this is the case, the provider must explain that decision and assist you to find another provider who may be willing to comply.  Another situation in which your provider is likely to be able to decline your PAD is if you were dangerous to yourself or others, or otherwise in an emergency.

10.  How long does my PAD remain valid?

Your Power of Attorney is valid until revoked.  You may revoke it at any time, orally or in writing.  If you appoint your spouse as your agent and subsequently become divorced, you must amend your document to make it clear who should serve as your agent.