Rhode Island Q and A

Ten commonly asked questions about PAD’s for Rhode Island

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.  Rhode Island’s Health Care Power of Attorney statute allows you to appoint an agent to make health care decisions for you in the event that you become unable to make those decisions yourself.  These decisions could be about any type of health care, including mental health care.  In appointing an agent, you may wish to specify how he/she should make decisions by documenting preferences about your mental health treatment.  To create a Power of Attorney, you must use the statutory form.

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

Yes, but not in a freestanding document.  If you want to specify instructions about medications or hospitalization, including refusals of either, they must take the form of instructions to your agent.  You should include them on your Health Care Power of Attorney form (see above); you should also thoroughly discuss your wishes with your agent.

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

No.  However, your form must be witnessed and signed by either two adult witnesses, neither of whom may be an employee of your health care provider or community care facility, and one of whom must not be a relative.  Alternatively, your form may be notarized.  The witnesses or Notary must attest that you were of “sound mind” and not subject to duress at the time you created the Power of Attorney.

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

Yes, as explained above. Your agent must be someone other than: your treating health care provider, non-relative employee of your treating health care provider, operator of your community care facility, or non-relative employee of your community care facility.

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

Yes, subject to the exception discussed under question 9 below.  In general, if you are determined to be incompetent, your agent may make decisions about any health care issue that you could decide on if you were competent, including decisions about psychiatric medications and/or hospitalization.  If you wish to limit the authority of your agent to only some decisions, you may do so on the form; you should also discuss this with your agent.

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 and/or on your preferences as known by the 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 described above, the Rhode Island statutes do not allow consumers to make instructions alone, with the important exception of decisions about life-sustaining treatment.  Consumers must appoint an agent in order to engage in advance decision making about their mental health treatment.

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 does not specify how incompetence is to be assessed; in practice, your agent’s authority would normally begin at the point your treating physician determines that you are not able to make your own mental health care decisions.  If you wish your agent’s authority to begin at a different point, you may specify that on your Medical Power of Attorney document.

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

Yes.  Your providers may ask a court to take away your agent’s Power of Attorney if he/she authorizes anything illegal; acts contrary to your known desires; or, where your desires are not known, “does anything that is clearly contrary to your best interests”.

10.  How long does my PAD remain valid?

Your Health Care Power of Attorney is valid as long as you do not revoke it.  You may revoke it at any time; your agent may also decide to cease acting for you at any time.  Your Power of Attorney automatically becomes invalid in the event of a legal separation or divorce if your spouse is named as your agent.  It is a good idea to review and update your Power of Attorney regularly.