Missouri Q and A

Ten commonly asked questions about PAD’s for Missouri

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.  Missouri’s Durable Power of Attorney for Health Care Act allows you to appoint an agent to make healthcare decisions for you if you become incompetent to make those decisions yourself.  Healthcare decisions may include decisions about mental health.  The Missouri Bar Association has published a standard form for this purpose, available here.  Although it is not mandatory, it is advisable to use part I of this form to appoint an agent because of the required wording it contains.

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

The Missouri statutes do not allow you to write advance instructions for your psychiatric care in a freestanding document, unless they concern end-of-life (life sustaining) procedures.  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, document them clearly and attach that document to the form on which you have appointed your agent.

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

No.  However, your form must be signed by two witnesses over eighteen years of age, and by a Notary.

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 can make any health care decision that you could have made if you were able to.  You should be aware that there are exceptions to this general rule: see question 9 below.

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 requires that your agent “seek and consider information” relating to your diagnosis, prognosis, benefits and burdens of the proposed treatment, every time a decision is made.  This creates a “best interests” standard.  However, the likely effect of the statute is that your agent is also required to follow your instructions as far as possible.  It is therefore important that you discuss your wishes with your agent.

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.  All that is required is that two licensed physicians believe you are incompetent to make the decision.  The physicians must document that decision in your medical records.

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

Because the statute is primarily concerned with end-of-life decisions, it does not specify when a psychiatric decision may be overridden by a clinician.  However, it is important to note that mental health care providers might be justified in declining your agent’s instructions if you were considered a danger to yourself or others, or otherwise in an emergency.

10.  How long does my PAD remain valid?

The document appointing your agent is valid until revoked.  You may revoke it at any time and in any way which demonstrates that you intend to do so.