Setting Out the Powers of the Agent
All of the advance directive forms cited in this web site set out a comprehensive listing of powers that are granted to the agent. Those powers, taken together, enable the agent to make all treatment decisions for you that you would be able to make if you were not incapable of making an informed decision about your care. The listing also ensures that the agent can see your records and authorize their disclosure to others who may need to see them, and that the agent can employ and discharge your health care providers as your condition and treatment needs may indicate.
You can, if you choose, strike through ANY of the listed powers that you do not want your agent to have, and you can add powers and give specific instructions for your agent to follow.
PLEASE NOTE: Before you strike through any of the listed powers of the agent, please think carefully about what you want your agent to be able to do for you in case you become incapacitated, and whether your agent can really be effective if the agent does not have that power.
Mental Health Care
New Provisions
The definition of “health care” set out in Section 54.1-2982 of the Health Care Decisions Act (HCDA) specifically includes “psychiatric or other mental health treatment”, and the listing of the agent’s powers includes the right of access by the agent to your records regarding your physical health and your mental health. In addition, the listing of the agent’s powers in the standard advance directive includes the authority to consent to your admission to a psychiatric facility for treatment for up to a maximum of 10 days if: (1) you do not protest such admission at the time of admission; (2) a physician at the facility examines you and states in writing that (a) you have a mental illness, (b) you are incapable of making an informed decision, and (c) you need treatment in the facility. If, after 10 days in the facility, you are still incapable of making informed decisions about your care and still need treatment in a facility, your continued stay in the facility can only be authorized through an involuntary psychiatric commitment process.(See Section 37.2-805.1 regarding this authority.)
Importance of the New Provisions in Planning for Future Care
As noted in the Overview, the advance directive can be used by persons concerned about future dementia, and by persons who have a mental illness that my result in the need for future psychiatric hospitalization, to set out ahead of time their directions on whether, and with what restrictions, they want their agent to be able to consent to their mental health care, including hospitalization, if they become incapable of making informed decisions about their care. Why is this an important tool? Under current law, if you need psychiatric hospital care but are incapable of giving informed consent to it, the only ways you can be given such care are:
1. Through an involuntary commitment process, even if you do not object to going into the hospital. In an involuntary commitment process, someone has to file a petition seeking your commitment. Normally, you are taken into custody by law enforcement officers, placed temporarily in a hospital (if you meet criteria for “temporary detention”), and later you participate in a commitment hearing before a judge or special justice, who decides whether you meet the criteria for involuntary commitment and need such commitment. (See Virginia Code Sections 37.2-808 through 37.2-817 regarding the involuntary commitment process.)
2. Through the consent of a guardian appointed for you by a Circuit Court, if the Court has specifically given the guardian the authority to give consent to such hospitalization. In order to give such authority to the guardian, the Court, by clear and convincing evidence, must find that you are an “incapacitated person” and that you have a “severe and persistent mental illness” that is “unlikely to improve in the foreseeable future”. (See Virginia Code Section 37.2-1009.) Appointment of a guardian requires a petition, appointment of a guardian ad litem to represent your interests and to provide an independent report to the Court, the submission of evidence in a hearing before a judge, and a finding by that judge by “clear and convincing evidence” that you are incapacitated and that the guardian needs to have this authority for your care. Psychiatric hospitalization can occur through the guardian’s consent only if it is confirmed by clinicians to be clinically appropriate, and the guardian can only authorize up to 10 days of psychiatric hospitalization. (See Section 37.2-805.1 regarding this authority.)
With an advance directive, you can exercise much more control over how you will be treated if you need mental health care in the future but are unable to give informed consent to such care at that time, through the authority you give to your agent and through the specific instructions that you include in your Advance Directive. In addition, through your Advance Directive you can be engaged in treatment without being subjected to Court proceedings and orders that otherwise would be necessary to get Court authorization for such care.
Authorizing Future Treatment Over Your Protest - The “Ulysses Clause”
What happens if you make an advance directive, but then, when you do become incapable of making an informed decision about your care, you protest the care being provided, even though that care is consistent with what you set out in your advance directive? It is possible, especially in cases involving dementia and mental illness, that the person’s incapacity also results in the person objecting to the care that he or she had wanted when not incapacitated. Virginia law now allows you to authorize your agent to give consent to care, consistent with whatever directions you set out in your advance directive, even if you protest that care after you become incapacitated. This provision is often referred to as a “Ulysses Clause”. (For Wikipedia’s explanation of the origins of the term “Ulysses Clause”, “Ulysses Pact”, click HERE.)
You can give your agent this authority to act despite your protest in regard to your physical care and/or in regard to your mental health care. (As will be explained in a later section, “Protesting Care”, this authority of the agent does not extend to end-of-life care decisions: your protest will always be honored in regard to decisions on end-of-life care. (See also Section 54.1-2986.2.))
Special Note: Because this authority is so significant, you must have your treating physician or licensed clinical psychologist sign a statement, set out in the advance directive, that you have the capacity to make this decision to let your agent authorize treatment over your possible future protest and that you understand the consequences of this.
Authorizing the Agent to Continue Serving Over Your Protest
The listing of powers of the agent in the advance directive forms cited on this website includes the following power: “to continue to serve as my agent if I object to the agent’s authority after I have been determined to be incapable of making an informed decision”. Please Note: this statement does not affect your ability to change your authorized agent at any time before you become incapable of making informed decisions. This provision was included because it is not unusual for a person who has become incapacitated to also become confused about what is happening, and upset at the agent, even though the agent is doing what the person originally instructed. If you delete this provision from your advance directive, and later protest your agent’s authority while you are incapacitated, then the agent will lose authority to act on your behalf. If you named a “successor” agent in your Advance Directive, that person could then act as your agent, unless you also protest that person. (See Section 54.1-2986.2(E).) NOTE: If a guardian has been appointed by the Circuit Court to make health care decisions for you, your protest has no effect on the continuing authority of the guardian.
Research
The Advance Directive form also includes two statements in which you give authority to your agent to consent to your participation in approved “health care studies”. Some studies may have the potential for direct benefit to you in regard to your medical condition, while others may not, but in either case the studies have the goal of expanding medical knowledge and eventually improving treatment.
(See Section 54.1-2983.1 for the statutory language regarding this.)
Control Over Visitation at any Health Care Facility
Sometimes tensions in family relations and friendships can cause major emotional problems when certain people want to visit you if you are in the hospital. The advance directive allows you to give specific instructions regarding visitation, and/or give specific authority to your agent to decide who can, and who cannot, visit, and the conditions for any such visit. Note: Your agent has no authority to determine visitation unless you specifically give that authority to your agent in your Advance Directive. Even then, the visitation decisions of your agent are “subject to physician orders and policies of the institution” to which your are admitted. (See Section 54.1-2986.1.)
General Powers of the Agent
The listing of the agent’s powers in the advance directive forms cited in this website includes the power to “take any lawful actions that may be necessary to carry out these decisions, including the granting of releases of liability to medical providers” . While technically you could remove this authority from your Advance Directive, such removal would raise doubts about your agent’s real power to authorize treatment for you, and could result in health care providers being unwilling to rely upon the authorization provided by your agent. This statement really needs to be a part of your Advance Directive, and should be removed only if you have alternative language that clarifies your agent’s power for the people treating you.