Oregon Q and A

Ten commonly asked questions about PAD’s for Oregon

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 October 2013.

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

Yes.  Oregon’s statute entitled “Declarations for Mental Health Treatment” allows you to appoint an agent to make decisions about your treatment if you become incompetent to make decisions; write instructions about how you would like your mental health care to proceed; or both.  A Declaration for Mental Health Treatment is valid for three years.  If you decide to make a Declaration for Mental Health Treatment, you must do so in writing.  A standard form, which is recommended but not mandatory, is available here.  The Oregon Department of Human Services has published FAQs and further information, available here.

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

Yes.  The statute allows you to set out your instructions on any aspect of your mental health treatment or your personal affairs.  This may include medication and/or hospital preferences, including refusals of medication or hospitalization.  You may provide advance consent to admission in a facility for mental health treatment for a period of seventeen days or less.

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.  It is recommended that you use the statutory form. Your document must be signed and dated by you and by two adults, each of whom must know you personally and must certify that you were of sound mind when the document was created, and that you were not placed under any pressure to sign it.  Your agent, your relatives, your partner and employees of your health care provider are all people who cannot act as witnesses.

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

Yes.  Unless one of the exceptional circumstances applies (see question 9 below), your agent may make any decision on your behalf that you would be able to make, were you competent to do so. Unless they happen to be related to you by blood, marriage or adoption, the following individuals are prohibited from acting as your agent: your physician, mental health service provider, employees of your physician or mental health service provider, and an owner, operator or employee of a health care facility in which you are a patient or resident. Furthermore, Title 13, Chapter 127, Section 727 of the Oregon statutes states that your parent, guardian or former guardian may not act as your agent if: (1) a court entered an order placing you in protective custody or committing you to the legal custody of the Department of Human Services at any time while you were under that person’s care, custody or control; and (2) the court entered a subsequent order that either you should be removed from their home, or continued in substitute care because it was unsafe for you to return (provided that no subsequent order permitted your return to the home) or the court entered a subsequent order that terminated that person’s parental rights.

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

Yes.  Your agent may make decisions about anything that you could decide on, unless one of the exceptional circumstances applies (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 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.  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.  You may 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.  All that is required is a finding by two physicians that you are unable to make mental health decisions yourself at that time.

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 you are committed to the Oregon Health Authority under the state’s involuntary treatment laws, (2) if your are committed to a state hospital or secure intensive community inpatient facility: as a result or being found guilty or responsible for a crime except for insanity, under a procedure for determining issue of fitness to proceed in court or in a procedure following a determination of unfitness to proceed in court; or (3) in an emergency.  Additionally, your provider or physician may refuse to treat you according to your Declaration if it is inconsistent with professional judgment.

10.  How long does my PAD remain valid?

Your Declaration for Mental Health Treatment is valid for three years, unless you are deemed incompetent to make decisions at the time the Declaration would normally expire, in which case it remains valid until you regain competence.  You may revoke your Declaration in whole or part at any time as long as you are not deemed incompetent at that time, by communicating that intention to your mental health care providers.

If you make a new Declaration within three years of your last one, and are competent to do so at that time, it automatically revokes the old Declaration.