The Law Q&A | The ins and outs of mental-health directives

The Law Q&A | The ins and outs of mental-health directives

In Homer's "The Odyssey," the hero Odysseus ordered his boat crew to lash him to the mast and not release him despite what he may later order while under the spell of the Sirens.

Illinois' Mental Health Treatment Preference Declaration Act is a legislative form of the Odysseus directive. It provides for people to make instructions, in advance of a mental-health disability, regarding treatment for their mental-health condition so that health professionals can act accordingly.

The directive must be in writing, signed by the person who may require the mental-health treatment (the principal). The signing must be witnessed by two adults attesting that the principal is known to them, and appears to be of sound mind, and is not under duress, fraud or undo influence.

The signed directive is effective only when delivered to the person's attending physician and remains valid until revoked or expires by law.

The attending physician must act within its instructions when the principal is found to lack the capacity to make mental-health treatment decisions. That conclusion must be made by two doctors or a court.

The directive may designate a person as an agent to make decisions regarding the mental-health treatment of the principal, but that authority does not kick in unless the agent signed an acceptance to be made an agent, and the principal lacks the capacity of decision making for his/her mental health.

If a principal is capable of making informed decisions about mental-health treatment, the attending doc must follow those decisions.

Successor agents can be listed to avoid not having one if the first designated agent is unable or unwilling to act. An agent can withdraw as agent by giving notice to the principal or, if the principal lacks capacity, to the attending.

The withdrawal itself can be withdrawn if the agent re-signs acceptance as agent.

The doctor may treat the principal in a manner contrary to the directive's instructions only if a court order says so, or if there is an emergency endangering life or health. Otherwise the instructions must be followed, or those of the authorized agent.

Illinois' directive form deals with options for the use (or prohibition of use) of psychotropic drugs, admission to or retention in certain health care facilities, or application of electroconvulsive treatment (what Cardinal fans experience when their bullpen blows a late-game lead).

The directive lasts three years from its effective date, unless the principal loses capacity beforehand. Then it lasts until capacity is regained.

If the principal has capacity, the principal can revoke it any time before the automatic expiration by signing a revocation that is also signed by his/her doctor, which is thereafter delivered to an attending doc if different from the signing

Like Odysseus strapped to the mast, the unfortunate modern Sirens of dementia and depression have been a clarion call in Illinois to have mental-health directives available to avoid the sometimes-contentious issues of treatment for an incapacitated loved one.

Odysseus had foresight.

Mental-health directives are a means of foresight to help families better navigate the stormy seas of mental incapacity.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.