Declaration of Mental Health Treatment: Supporting Loved Ones with Mental Illness

If you have a family member that has been diagnosed with a mental illness, you can probably understand how difficult it can be to get the person help if they refuse to seek it on their own.  If medication is needed to stabilize moods or other more serious symptoms of the illness, you know how frustrating it can be if they refuse or stop taking the medication and you have limited recourse.

Dealing with Loved Ones with Mental Illness

Texas law defines a mental illness as an illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual disability, that substantially impairs a person’s thought, perception of reality, emotional process, or judgment or grossly impairs behavior as demonstrated by recent disturbed behavior.

When it comes to individuals that suffer from mental illness, there are three important things to keep in mind. 

  1. The law presumes that they are competent.
  2. The Texas Constitution prohibits the commitment of a person because of unsound mind, except on competent medical or psychiatric testimony.
  3. The law does not give a third party the right to admit or treat a person even on a voluntary basis in an inpatient mental health facility. Only the person being treated in an inpatient mental health facility can agree to voluntary treatment.  

Fortunately, there is an advance directive that can help when families have a member that is chronically mentally ill.

If you have a family member that falls into this category, during a period of mental stability, it’s important to take the time to have a discussion with them about getting the Declaration of Mental Health Treatment.  

What is The Declaration of Mental Health Treatment?

This declaration allows the person with the mental illness to specify their wishes regarding treatment pertaining to psychoactive medication, convulsive treatment, and emergency treatment.  The declarant may also provide other instructions for treatment.  

The 7 Important Factors Relevant to the Effect of this Declaration

  1. The declarant must have capacity at the time of signing
  2. The declaration is effective upon signing
  3. It expires 3 years from the date of execution or upon revocation by the declarant
  4. If the declarant is incapacitated at the time of expiration, the declaration remains in effect until capacity returns
  5. Instructions in this declaration supersede any conflicting instructions given by a guardian or agent under a durable power of attorney for health care
  6. A healthcare provider may disregard the declaration if the declarant is under an order for temporary or extended mental health services or in case of an emergency when the declarant’s instructions have not been effective in reducing the severity of the behavior that has caused the emergency.
  7. The declaration must be signed before two witnesses or notarized.

Keeping this document effective requires the declarant, with the help of family members as necessary, be proactive.  Once signed, this document needs to be provided to healthcare providers to be placed in the declarant’s medical records.  I understand this is a delicate topic of discussion for many.  However, for this document to work in general and for it to work for the person with a diagnosis of a mental illness, a great deal of consideration and discussion should be had between the person with the diagnosis and their doctor as well as their family.  It needs to be updated every three years.   

At the Law Office of Antoinette Bone, PLLC, we understand that every individual and family dynamics is unique. We provide estate planning services to create a custom estate plan that reflects your current situation and update them as changes happen in your and your family’s lives. Call our office at (682) 428-3046 today to request an appointment.

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