Washington Q and A

Ten commonly asked questions about PAD’s for Washington

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 2006.

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

Yes.  Washington State’s statute entitled “Mental Health Advance Directives” 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.  There is no mandatory form, but the statute provides a suggested form, which is recommended.  The Washington Department of Social & Health Services has produced further information for consumers, 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 either or both.  You may provide advance consent to admission in a facility for mental health treatment for a period of fourteen 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 clearly-worded written document. This document must be signed and dated by you and by at least two adults, each of whom must know you personally and must certify that you were capable when the document was created, and that you were not placed under any pressure to sign it.  Your agent, your relatives, your partner, employees of your health care provider, those declared incapacitates and those who would benefit financially from your mental health treatment are all people who cannot act as witnesses.  The document must specify whether or not it is revocable if/when you become incompetent (see below).  It must also state clearly that your agent’s authority continues even when you become incompetent.  Because of these requirements, it is strongly recommended that you use the state’s suggested form.

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.

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 health care professionals, one of whom must be a mental health specialist, that you are unable to make the decision yourself.  If a person is found to be incompetent and remains admitted as an inpatient, his/her status must be reviewed at regular intervals: for more, see Chapter 71.32.130.

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: (1)  if they violate medical professional standards or are unavailable; (2) if following them would violate Federal or State law; (3) in an emergency; or (4) if you have been hospitalized under the Involuntary Treatment Act.  Special rules also apply if you are incarcerated.  For more, see Chapter 71.32.150 of the statute.

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.  You must indicate in your advance directive whether your instructions should be revocable at any time, or only when you remain competent.   Revocation must be in writing, although there is no specified form.  If you make a new document and are competent to do so at that time, it automatically revokes the old document.