Pennsylvania Q and A

Ten commonly asked questions about PAD’s for Pennsylvania

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.  Title 20, Chapter 58,of the Pennsylvania Consolidated Statutes allows you to write instructions for your psychiatric treatment in the event that you are incapable to make or communicate those instructions. In Pennsylvania, the document in which you record your instructions is called a Mental Health Declaration.  The statute also allows you to appoint an agent to instruct mental health care professionals for you.  This is called a Mental Health Power of Attorney.  You may choose to make a Mental Health Declaration, a Mental Health Power of Attorney, or both.  Pennsylvania’s Department of Human Services has published a very helpful set of instructions for consumers, including forms. The forms are not mandatory but are recommended.

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

Yes.  You may use a Mental Health Declaration to express any and all wishes you have about your mental health treatment, including refusal of mental health treatment.  Protection & Advocacy’s instructions explain this in detail.

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

No.  You are presumed competent to make a Mental Health Declaration unless you have been found to be incapable of making mental health care decisions or have been committed under involuntary commitment laws.  Your Mental Health Declaration or other document containing your instructions must be signed by two witnesses.

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

Yes.  You may use a Mental Health Power of Attorney to name any adult with capacity as your agent.  The exception is that an employee of your mental health care provider may not act as your agent unless he/she is related to you by blood, marriage or adoption.

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

Yes.  You may grant your agent power to make any and all decisions relating to your mental health treatment or other related decisions (for example, the care of your children during any period when you are incompetent).  Alternatively, you may limit your agent’s authority to certain types of decision.  However, your agent may never consent on your behalf to psychosurgery or the termination of your parental rights. If you wish your agent to be able to consent to electroconvulsive therapy (ECT) or experimental procedures on your behalf, you must say so clearly on your form; otherwise, your agent will not have that authority.  For more, see Protection & Advocacy’s instructions.

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 use substituted judgment.

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.  Your Mental Health Declaration/Power of Attorney takes effect when a psychiatrist and another mental health professional state that you are no longer competent to make your own treatment decisions.  Alternatively, you may specify when you want your Mental Health Declaration/Power of Attorney to take effect, for example by naming an event or behavior which you know happens when you are incapable of making your own mental health decisions.

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 the instructions of you or your agent if they are against accepted medical practice or if they are not physically available.  For more, see Protection & Advocacy’s instructions.

10.  How long does my PAD remain valid?

Your Declaration/Power of Attorney remains valid for two years, or until you revoke it, whichever period is the shorter.  You may revoke a Mental Health Declaration orally or in writing at any time you are not incapable of making mental health decisions.  If you have been involuntarily committed, you may revoke your Declaration only if a psychiatrist and another mental health professional decides you are capable of doing so.  Making a new Declaration automatically revokes your old one.   If you appoint your spouse as your agent, he or she would no longer be a valid agent if you became divorced or legally separated after you wrote the document.  In that situation, you would need to amend the document to clarify who should be your agent.