(aka "Advance Instruction on Mental Health Treatment") A Durable Mental Health Care Power of Attorney (DMHPA) helps avoid the need for a civil commitment hearing when a person suffers from mental illness.1 Such a hearing can be expensive, time-consuming and embarrassing. The primary concern with mental illness is that a person who has such an illness usually is unaware of it. Thus, a person suffering from debilitating depression, alcoholism, bipolar disorder or any number of other mental illnesses often does not have the insight to realize that he or she needs help. There are only two choices available to address the possibility of debilitating mental illness when you are not aware of the danger in which it places you or others. These choices are (1) to wait until it happens (in which case the people who care about you must pursue judicial civil commitment proceedings) or (2) to plan ahead by completing a Mental Health Care Power of Attorney. Civil commitment proceedings The procedural hurdles for committing a person to involuntary mental health treatment are largely due to the protections in the U.S. Constitution again violations of due process. The confinement must take place "pursuant to proper procedures and evidentiary standards." Kansas v. Hendricks, 521 U.S. 346, at 357 (1997). This usually means that the person seeking the commitment must obtain a court hearing within 72 hours of the involuntary placement. At this hearing, the alleged mentally ill person will often have an attorney appointed for him or her. In the meanwhile, however, the person may be held in a county “Crisis Receiving Unit” where he or she receives no treatment. If the person is found to meet the statutory requirements for civil commitment, he or she will be placed in a mental health treatment facility for a number of weeks. A second contested hearing may then be scheduled within approximately two weeks. Attending this contested hearing are typically two or three physicians, psychiatrists or psychologists; the County Attorney; social workers; and friends and family members. f the court determines that continued involuntary commitment is appropriate, it may set future review hearings on the person’s progress. Civil commitment statutes must "couple proof of dangerousness with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality.’” Id. in response to such allegations, the court-appointed attorney may seek to have the court appoint an independent psychiatrist or psychologist to evaluate the person. The contested hearing may last for hours. The alternative is a DMHPA Alternatively, in the spirit of “Preventative Law,” a person can help prevent the need for such a complicated legal battle by completing a DMHPA ahead of time. The DMHPA that we recommend will:
- 1. Help avoid costly court proceedings.2
- 2. Avoid publicity. Civil commitment hearings are closed to the public. But the last name would still appear on the court calendar and your friends, family, social workers, County Attorney and possibly physicians would be waiting outside the courtroom prior to the hearing. You probably would be brought to the courthouse by a Sheriff Deputy. In contrast, you can be privately admitted to treatment if you have already signed a DMHPA.
- 3. Give you more control. You may customize the DMHPA to address your personal desires for possible mental health care.
• You can choose, for example:
• Your mental health agent
• What medications you do not want
• What treatments you do not consent to
• Where you want to be placed for treatment
• Whether or not the DMHPA will be revocable if you are unable to give informed consent to mental health treatment. - Assist others in helping you through mental health crises by stating ahead of time:
• Who is your physician and/or therapist
• What might cause you to experience a mental health crisis
• What may help you avoid a hospitalization
• How you may react to being hospitalized; and
• Who you want to allow to visit you 1Mental illness is distinguished from the normal affects of age or Alzheimer's Disease, which are addressed in a Durable Medical Power of Attorney. 2State law may still require court proceedings if, for example, the involuntary administration of neuroleptic or other psychotropic medications is being sought, if involuntary sterilization is being sought, or if the administration of electroconvulsive treatment is being sought.
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