Virginia Q and A
Ten commonly asked questions about PADs for Virginia
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 2013.
1. Can I write a legally-binding psychiatric advance directive (PAD)?
Yes. Virginia’s Health Care Decisions Act authorizes advance directives for mental health as well as other medical treatment. Multiple forms are provided by the Virginia Hospital and Healthcare Association and the Virginia Advance Health Care Directives website, but you are not required to use any specific form. The only requirements are that you put your wishes in writing, sign them, and have two adult witnesses who see you sign, sign them as well. If you are appointing an agent to make health care decisions on you behalf, that person should not be one of your two witnesses. The Health Care Decisions Act provides the full legal code governing the use of advance health care directives in Virginia. The Virginia State Bar provides a variety of information including a summary of the Health Care Decisions Act as well as a toolkit for preparing an advance directive, although the toolkit does not focus specifically on psychiatric issues.
2. Can I write advance instructions regarding psychiatric medications and/or hospitalization?
Yes. All variations of Virginia's advance directive for health care form allow you to set out your instructions on any aspect of your psychiatric treatment, which could include advance decisions to request or refuse medications or hospitalization. The Virginia Advance Health Directives website has published a form created specifically for people with serious mental illness or other health conditions: Virginia Advance Directive for Health Care with Specific Instructions for Mental Health and Other Treatment. Sections II (C) and II (D) allow you to specify in great detail your preferences regarding psychiatric medications and hospitalization.
3. Does anyone have to approve my advance instructions at the time I make them?
In general, no one has to approve your advance instructions. However, if you chose to complete Section II (F) or Section II (G) of the standard form your physician has to sign these sections confirming that you are capable of making an informed decision and that you understand the consequences of your decision. This is required because by signing Sections II (F) and II (G) you agree that if you are unable to make decisions, your health care agent is authorized to admit you to a hospital or provide the treatment you specified in your advance directive, even if you object to being admitted or treated at that time. You might chose to complete this section if, for example, you have bipolar disorder and you know from past experience that when you have manic symptoms, you sometimes refuse to take needed medication to treat your mania.
4. Can I appoint an agent to make mental health decisions for me if I become incompetent?
Yes. You may create an advance directive appointing any adult to be your agent.
5. If I become incompetent, can my agent make decisions for me about medications and/or hospitalization?
Yes. However, your agent cannot authorize non-therapeutic sterilization, abortion, or psychosurgery. Furthermore, your agent may only admit you to a mental health facility (and even then, for only up to 10 days without a hearing) if you have expressly authorized such an admission in your advance directive.
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 make decisions in accordance with, in order, 1) any advance directive instructions you have made, 2) your stated beliefs, values, and preferences, 3) your best interest if your exact wishes are not known. Your agent is not allowed to restrict visitation unless you expressly included information about visitation restriction in your advance directive.
7. Is there any rule that says that I can only make advance 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 advance directive goes into effect if your attending physician and a second physician or clinical psychologist not involved in your care determine that you no longer have capacity to make decisions for yourself.
9. Does the statute say anything about when my mental health providers may decline to follow my PAD?
Yes. The statute says that your providers may decline to follow your instructions, or those of your agent, in the following situations: (1) The provider believes the requested health care is medically or ethically inappropriate; in that situation, the provider must try to find another provider who will follow the instructions; (2) The provider is “physically or legally unable to provide” the care requested; (3) The provider is “physically or legally unable to provide” the requested care “without thereby denying the same health care to another patient;” (4) You were hospitalized or medicated under Virginia’s involuntary treatment or mandatory outpatient treatment laws and your instructions, or those of your agent, conflict with those laws.
10. How long does my PAD remain valid?
Your advance directive is valid as long as you do not revoke it. You may revoke your advance directive at any time if you are capable of understanding the nature and consequences of your actions (for example, you probably could not revoke the directive if you were actively psychotic or severely demented). To revoke your directive, you can sign and date a revocation, physically destroy or have someone else physically destroy the document, or orally express your desire to revoke the document.