Vermont Q and A

Ten commonly asked questions about PAD’s for Vermont

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 2006.

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

Yes.  Although the Vermont statutes do not provide specifically for PADs, Title 18, Chapter 231 of the Vermont statutes 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 health care to proceed; or both.  This law covers all types of health care, which could include psychiatric treatment. There is no mandatory form as long as you follow the procedural rules in the statute (see below).  However, Disability Rights Vermont has published a model form which consumers may find useful, available online 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 health care treatment, which could include advance decisions about psychiatric medications and/or hospitalization.  If you wish, you may make advance decisions to refuse medications or hospitalization.

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

No.  However, the document containing your advanced instructions must be notarized, or signed by two witnesses.  If you are likely to be treated in the states of New York or New Hampshire, you are advised to have the document notarized.  Furthermore, chapter 9703 of the statutes creates the following rule: if at the time you document your instructions, you are a resident of a nursing home or other residential facility, or if you are a “patient in a hospital” at that time, an ombudsman, member of the clergy, attorney or another person designated by the probate court must explain the effect of the document to you and sign it in addition to the witnesses or Notary.

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

Yes.  As with advance instructions, the following rule applies: if at the time you appoint your agent, you are a resident of a nursing home or other residential facility, or if you are a “patient in a hospital” at that time, an ombudsman, member of the clergy, attorney or another person designated by the probate court must explain the effect of the document to you and sign it in addition to the witnesses or Notary.  If you make advance instructions and appoint an agent at the same time, you need not go through this process twice.

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.  If you wish your agent to authorize or withhold a particular treatment or treatments even if you object during a time when you are incompetent, your agent must accept that responsibility in writing and your document must be signed by your clinician and an ombudsman, recognized member of the clergy, attorney or probate court designee.  This is called a “Ulysses clause”.  For more on Ulysses clauses, see the Legal FAQs section of this resource.  If you decide not to make a Ulysses clause when you appoint your agent, psychiatric medications and/or other treatment will not be given or withheld from you over your objection, whether or not you are competent to object at the relevant time.  The statutes do not allow you to make a Ulysses clause in respect of advance instructions only; if you wish to make one, you must appoint an agent.  For more, see Chapter 9707 of the statutes.

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, on wishes you have expressed to your agent and/or health care provider, and/or on your religious or moral values.  If it is not possible to make a decision in that way, your agent must make the decision in your best interests.  For more, see Chapter 9711 of the statutes.

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.  The Vermont statute allows you to choose when your PAD must be followed.  There are three options: (1) your PAD should be followed at all times, whether or not you are competent to make decisions; (2) your PAD should be followed when you are in a particular “circumstance or condition”; or (3) your PAD should be followed only when your clinician determines that you are not competent to make a decision, has notified you and your agent, and has documented that determination.  For more, see Chapter 9706 of the statutes.

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 the instructions of you or your agent if they would violate criminal law or professional standards in doing so, or if your provider was “unwilling” to follow your PAD because of a “moral, ethical or other conflict”.  In the second situation, your provider must assist in trying to find another provider who will follow your PAD. Additionally, if you are hospitalized or medicated under Vermont’s  involuntary treatment laws, it is likely that health care providers can decline to follow your instructions, or those of your agent.

10.  How long does my PAD remain valid?

The document containing your instructions and/or agent nomination is valid as long as you do not revoke it. If you make a new document and are competent to do so at that time, it automatically revokes the old document.  You may also revoke your document at any time by signing a statement of that intention, by telling your clinician, or by burning, tearing or obliterating it.  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.