Montana Q and A

Ten commonly asked questions about PAD’s for Montana

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 September 2013.

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

Yes. Title 53, Chapter 21, Part 13, of the Montana statute allows you to write instructions for your mental health care treatment and any other medical treatment that may directly or indirectly affect your mentl health and general care during a period of time in which you have been determined by a court or your healthcare provider as unable to give or withhold consent to medical treatment. This document also allows you to appoint an agent to make mental health care treatment decisions on your behalf.

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

Yes. You can make choices about medications and hospitalization, including consent or refusal of consent to specific types of mental health care treatment, including medical, behavioral, and social interventions. You may also include but are not limited to including descriptions of situations that may cause you a mental health crisis, descriptions of behavior that may indicate you are incapacitated, instructions to apply or avoid certain interventions that may deescalate or escalate crisis, instructions on who should or should not be notified or allowed to visit if you are admitted to a treatment facililty, and instrucitons that limit the directive’s revocability.

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

No.  However, you must put them in writing. The document containing your advance instructions must be signed and dated by you or at your direction and in your presence, and be notarized.

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

Yes. Your agent may accept the appointment by signing the document. Your agent’s signature does not need to be witnessed or notarized and the lack of such a signature will not affect the validity of your directive. An agent may resign from their duties by giving you written notice or if the direcive is in effect, by giving the supervising health care provider written notice. Your directive may provide for one or more alternate agents.

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

Yes.  If you are determined to be incompetent and unable to give or withhold consent to medical treatment involving medications or hospitalization, your agent is authorized to make those decisions for you. The authority of your agent to make such decisions is only in effect during a period of time in which you are determined to be incapacitated. Please note that a health care provider may decline to follow your agen’ts instructions under certain circumstances (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”?

Your agent must make all health care decisions in accordance with your written instructions or directive. When required to make decions not addressed by your written instructions or directive, an agent, acting in good faith, must make all decisions based on your known wishes and their best judgment about how you would decide based on your values and experience.

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 or 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. In order for you PAD to take effect, your supervising health care provider must determine that you are incapacitated, lacking the ability to give or withhold consent to treatment . The supervising health care provider must promptly make a note of the determination in you healthcare record. They must also communicate the determination of incapcity to you and your agent. An agreement between two healthcare providers, one of whom must be your supervising health care provider and one of whom must be a psychiatrist or other physician, may be required to trigger your directive.

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

Yes. Your mental health care providers may decline to follow your advanced instructions, or those of your agent, if the requested treatment is not reeasonably available , an emergency situation exists and compliance would endanger your life or health, or if compliance would violate or conflict with the accepted standard of care, applicalbe law, or a court order. Your advance directive has no legal effect during a period of involuntary inpatient commitment or during a period in which you are subject to a court order. Furthermore, if you execute another type of advance directive recognized by Montana law, they must be consistent with and may not override a mental health care advance directive. Finally, your directive may not create an entitlement to mental health treatment or other medical treatment.

10.  How long does my PAD remain valid?

Your mental health care advance directive is valid indefinitely unless it includes an expiration date or you or your appointed agent choose to revoke it. If your mental health care advance directive expires during a time in which you have been determined incapacitated it will remain valid until your capacity has been restored. You may revoke your directive orally or in writing at any time unless you have been determined incapacitated and it includeds instructions stating that it may not be revoked during or after a specified amount of time following a period of incapacity. Unless your newest directive provides instructions stating otherwise, it will revoke all prior directives.