- A psychiatric advance directive (PAD) is a legal document that documents a person’s preferences for future mental health treatment, and allows appointment of a health proxy to interpret those preferences during a crisis.
- PADs may be drafted when a person is well enough to consider preferences for future mental health treatment.
- PADs are used when a person becomes unable to make decisions during a mental health crisis.
Nevada Q and A
Ten commonly asked questions about PAD’s for Nevada
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 November 2006.
1. Can I write a legally-binding psychiatric advance directive (PAD)?
Yes, by appointing an agent, called an “Attorney in fact”. Nevada’s Durable Power of Attorney for Health Care statute allows you to appoint an agent to make healthcare decisions for you if you become incompetent to make those decisions yourself. Healthcare decisions may include decisions about mental health. Although not mandatory, it is highly recommended that you use Nevada’s standard form Durable Power of Attorney to appoint your Attorney in fact.
2. Can I write advance instructions regarding psychiatric medications and/or hospitalization?
The Nevada statutes do not allow you to write advance instructions for your psychiatric care in a freestanding document, unless they concern end-of-life (life sustaining) procedures. However, if you appoint an Attorney in fact, you may wish to specify how you would like that person to make decisions for you. If there are particular matters that you wish your Attorney in fact to make clear to your treating physicians, it is advisable to discuss them with your agent and document them clearly in parts 4 and/or 6 of the suggested form.
3. Does anyone have to approve my advance instructions at the time I make them?
No. However, your form must be signed by two witnesses over eighteen years of age, who must declare that you were of “sound mind” and not under duress when you created the document. Your Attorney in fact, and employees of your health care provider or facility, cannot act as witnesses. At least one of the witnesses must not be related to you, or be the beneficiary of your estate. Instead of witnesses, you may have the form notarized.
4. Can I appoint an agent to make mental health decisions for me if I become incompetent?
Yes, as outlined above.
5. If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?
Yes. The general rule is that your Attorney in fact may consent or refuse any medical treatments or procedures on your behalf when you are incompetent to make decisions yourself. However, your Attorney in fact may not consent on your behalf to: (1) your commitment or placement in a mental health treatment facility; (2) electroconvulsive therapy (ECT); (3) psychosurgery; (4) sterilization; (5) abortion; or (6) aversive interventions. The general rule is also subject to the exceptions set out at question 9 below. If you wish to limit your Attorney in fact’s decision making power to certain types of decision, you may say so in part 4 of the suggested form.
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”?
The statute does not say how an Attorney in fact must act with regard to non life-sustaining procedures. However, the more you discuss and document your wishes in conjunction with him/her, the more likely it is that those wishes will be followed.
7. Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?
Yes. As explained above, it is not possible to write advance instructions only. If you wish to create a PAD, you must appoint an Attorney in fact, but the extent to which you also document your decisions is up to you.
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 statute states that the Power of Attorney goes into effect as soon as you are “incapable of giving informed consent” to treatment. In practice, this is likely to mean that the document is activated when your provider believes that you are unable to understand and/or communicate your treatment options.
9. Does the statute say anything about when my mental health providers may decline to follow my PAD?
The statute states that your Attorney in fact’s instructions will be followed “except to the extent that there are limits provided by law”. It is important to note that mental health care providers might legally decline your Attorney in fact’s instructions if you were considered a danger to yourself or others, or otherwise in an emergency.
10. How long does my PAD remain valid?
Your Power of Attorney is valid until revoked. You may revoke it at any time as long as you are not considered incompetent at that time. If you appoint your spouse as you Attorney in fact and subsequently become divorced, you must amend your document to make it clear who should serve as your Attorney in fact.