- 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.
South Carolina Q and A
Ten commonly asked questions about PAD’s for South Carolina
Note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state Statutes say – or do not say – about PADs. The FAQs do not attempt to provide a complete overview of the law in your state, nor can they take the place of legal advice.
1. Can I write a legally-binding psychiatric advance directive (PAD)?
The Code of South Carolina provides for ADs but not PADs. However, the South Carolina Department of Mental Health has recently published a PAD, known as a “Declaration for Mental Health Treatment”. The PAD form is available online at www.state.sc.us/dmh. On the same site, there is a card you can keep on your person to advise that you have a PAD.
2. Can I write advance instructions regarding medications and/or hospitalization?
Yes. You can specify choices about both medications and hospitalization, including your refusal of consent to either. The PAD form also allows you to indicate which treatment strategies other than medication you have found helpful in the past, for example that you wish the TV to be turned off.
3. Does anyone have to approve my advance instructions at the time I make them?
No. However, your PAD requires the signatures of two witnesses who attest that you are competent to make the PAD at that time.
4. Can I appoint an agent to make mental health decisions for me if I become legally incompetent?
Yes, using the same “Declaration for Mental Health Treatment” form.
5. If I become legally incompetent, can my agent make decisions for me about medications and/or hospitalization?
Yes. If you become legally incompetent to make a particular decision about medication or hospitalization, your agent can make that decisions for you, which could include a decision not to accept the treatment being offered.
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.
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. However, the state advises that the contents of your PAD (“Declaration for Mental Health Treatment”) may be more legally binding if attached to the AD provided for in the South Carolina Code, section 62-5-504. You are therefore advised to fill out both documents, cross-referencing them to one another, particularly if you wish to appoint one agent for psychiatric decisions and another for other healthcare decisions.
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?
9. Does the statute say anything about when my mental health providers may decline to follow my PAD?
10. How long does my PAD remain valid?
The “Declaration for Mental Health Treatment” contains no time limit. It is therefore valid until you revoke it. For more on the legal issues surrounding revocation see [legal FAQs].