Proposed Changes to Mental Health Care Power of Attorney

Mental health is, and has always been, a complex subject. There is a delicate balance between respecting the rights and desires of the person so effected, and ensuring the safety of those suffering or of the public at large.

A good estate plan will likely include some form of Mental Health Care Power of Attorney where elections are made concerning how to handle time of incapacity. An Agent is appointed to carry out those directions, and ensure that appropriate treatment is sought and received. But what if the Principal, the person for whom the Power of Attorney was created, does not WANT treatment?

Under current Arizona law, the Principal can REVOKE the Power of Attorney even if they are actually incapacitated. Facilities, doctors, and the Agent can all KNOW that they need treatment, but by simply orally telling the doctor or Agent that they are revoking that Power of Attorney, they can undo all the planning that occurred while the Principal was not suffering. See A.R.S. 36-3285(A)

If you thing this seems like a glaring error, you are not alone. Enter the Arizona Bar Association – specifically the Elder Law, Mental Health and Special Needs Planning Section. SB1169 is currently pending in the legislature with a scheduled hearing before the Senate Health and Human Services Committee on February 3, 2016.

There are numerous changes to the law in this proposed bill, the critical one in my view is to this section. The proposal would change the section to read “Unless a principal IS incapable … a principal may revoke all or any part of the principal’s mental health care power of attorney ….”  See Page 11 of the above link.

With this relatively simple change, the incapacitated person will be unable to discharge their Mental Health Care Power of Attorney during their incapacity and thus are more likely to actually receive the treatment that they need. Keep in mind that most people who become incapacitated are able to come out of that state with treatment. Thus, if they truly desire to change the terms of their Power of Attorney, they will have the ability to do so during that time.

This bill has the potential to fix a gap in the law that was likely unintentional in the first place. If you are so inclined, I invite you to email or call your state representatives and voice your opinion on this bill. Join in the debate.

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