Sometimes I think institutions just make up reasons they don’t have to deal with you.
The latest institutions to hit the radar are mental health treatment centers. They seldom want to deal with patients’ relatives. Why? Relatives, especially parents, tend to ask awkward questions like “Why have you given so much medication to my adult child that he is a walking zombie?” and “How was my adult child magically cured on the very same day his insurance coverage ran out?”
Understanding Psychiatric Power of Attorney
Institutions often duck the issues by demanding that you first provide them with a “Psychiatric Power of Attorney” or similar document signed by your mentally ill adult child. Without these documents, they will refuse to confirm that they even know your adult child.
Unfortunately, Texas law does not specifically authorize a Psychiatric Power of Attorney. Instead, you will need to cobble together three documents to get you there hopefully. All three of these documents must be executed by your child during a period of lucidity.
Documents for Psychiatric Power of Attorney
1. Declaration of Mental Health Treatment
The first document is the Declaration of Mental Health Treatment. The statutory authority and form for the document are hidden in plain sight in the Civil Practice & Remedies Code, Chapter 137.
The Declaration is your adult child’s statement of preferences or instructions regarding mental health treatment. He may even include a consent to or refusal of mental health treatment. The Declaration is effective when it is executed.
Important Details of the Declaration of Mental Health Treatment
Surprisingly, the Declaration expires three years after it is executed. There is a grace period if your child is incapacitated on the date it would otherwise expire; in that case, it continues in effect until your child is no longer incapacitated. Your child must sign the declaration in the presence of two witnesses, or it must be signed in front of a notary public. If witnesses are used, then certain people such as relatives, heirs, beneficiaries, and employees of the health care provider are prohibited from serving.
The institution and your child’s doctor are required to follow the instructions in the Declaration. If, at the time, your child can provide informed consent, then they must seek your child’s approval for all mental health treatment decisions. However, the doctor can ignore the Declaration if there is an emergency and your child’s instructions have not reduced the severity of his behavior, or if there is a court order for mental health services.
2. HIPAA Release
Enter the second document: the HIPAA release. This is your adult child’s written permission to the world to release all your child’s medical information to you. Using the HIPAA release, you should be able to go into a facility or doctor’s office and obtain any medical information they have on your child. This will also, indirectly, confirm when they have provided medical services to your child.
3. Medical Power of Attorney
Once you have the information, then the trick is to get the doctors to talk to you about your child’s condition and treatment. This is where you hand over the third document: the Medical Power of Attorney. This is your child’s written appointment of you as his agent to make medical decisions for him if he is incapacitated.
Hammerle Finley Can Help With Your Loved One’s Mental Health Documents
Taken together, these three documents are designed to get you access, information, and a voice in your adult child’s mental health care. Do they work? It depends on how desperately the institution wants to hide something. If you do get pushback from the mental health care providers, then you may need to hire an attorney and do some pushing of your own.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
