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The Advocate Oak Blog

Author: Speak Team

Psychiatric Advance Directives: Helping You Take Control of Your Health Planning

What is a Psychiatric Advance Directive (PAD), and what does it do?

During a health care emergency, it can be comforting to know that your treatment preferences will be respected. However, if you or a loved one are in a mental health crisis, it might be very difficult to make sound decisions, particularly about treatment. A “Psychiatric Advance Directive” or “PAD” is a legal document that assigns a mental health care representative to make treatment decisions if someone is in a mental health crisis. A PAD can give you peace of mind that you or your loved one will have their health care wishes respected during a mental health crisis. A PAD can even shorten the length of a mental health crisis by giving treating doctors helpful information regarding a person’s mental health history.

Sitting down to draft a PAD is an opportunity for you and your loved ones to discuss mental health care planning and to have open and honest conversations regarding mental health. Also, if you or your loved one already has a PAD that was properly filled out in another state or country, it will be upheld in New Jersey under our State laws.

What can I include in a PAD?

The law that covers PADs was written to promote an individual’s decision-making. So, there are many choices about health care that an individual can include in a PAD. A person can list what kinds of symptoms might be a sign of a mental health crisis. They can explain previous diagnoses and when they were made. They can include programs, medications, and therapies that have worked in the past. They can name a representative, as well as alternate representatives. They can state what a representative can decide, as well as what they cannot decide regarding treatment. They can plan what kind of community-based care they would like to use and if they wish to avoid hospitalization, if possible.

Do I need an attorney to complete a PAD? Do I need to go to court?

You can draft a PAD at home, at no cost, and without the need for an attorney, court hearing, or judicial decision. The law requires that there be one witness present and that they confirm that the individual is of sound mind and is not receiving undue influence. This is another way of saying that the person is not being pressured to sign the PAD. The witness cannot be the same person as the mental health representative.

The representative’s authority begins at a future time, but only if certain future events take place. This shift of decision-making power from an individual to their representative only occurs if that individual is found unable to do so by a mental health professional or if the person agrees to have the authority transferred. (We discuss this in more detail below). The authority ends when the person regains decision-making capacity.

For more information on how to properly complete a PAD, please see our link to resources at the bottom of this article.

How is a PAD different from a guardianship?

You may have heard of or be familiar with the legal concept of “guardianship.” A PAD is not a “guardianship.” A “guardianship” is a kind of legal relationship that occurs when a court determines that an adult lacks capacity and that they need a guardian to be responsible for all or some of their legal decisions, usually for the rest of that person’s life. The guardian is assigned by the court; they are not chosen by the individual. In some cases, the court might even assign a guardian that the person does not know, such as in the case of a professional guardian. In most cases, a guardianship permanently and severely restricts the individual’s rights and decision-making.

Unlike a guardianship, a PAD can be something that transfers decision-making authority to another person only as needed, and the individual can choose who that other person will be, as well as what kind of treatment decisions the representative can or cannot make. A PAD is a very useful tool for an individual who experiences mental health crises only sometimes, such as if the person has a mood disorder. (To help illustrate this, we have provided a narrative case example below).

What is a mental health care representative?

The mental health care representative acts as a kind of “proxy.” The legal term, “proxy,” means that a person has the authority to represent and make decisions for someone else. In this case, the representative would have the authority to make mental health care decisions on behalf of the person who is in crisis, consistent with the instructions set forth in the PAD.

What does the PAD law mean by “decision-making capacity?”

“Decision-making capacity” means a person’s ability to understand the nature and consequences of mental health care decisions. The “mental health care decision” is the decision to accept or refuse any treatment, including whether a particular mental health care professional or facility can provide care. For example, this might include the decision to stop, continue, or start: taking medication; speaking with a therapist; attending psychiatric appointments; and attending group therapy sessions.

The capacity to make such decisions means the person understands the risks, the benefits, and any alternatives, and that they can reach an informed decision. Decision-making capacity is specific to which mental health care decision is being made. In other words, a person might still be able to make certain mental health care decisions.

What activates a mental health care representative’s authority?

The PAD is a binding legal document once it is signed. However, the representative’s authority does not automatically activate at the moment the PAD is signed. It is activated when the person does not have decision-making capacity regarding a certain mental health care decision. Under the PAD law, there are two possibilities for how this is determined. The person gets to choose which scenario will “activate” the PAD when they draft and complete the agreement.

The first possibility is that the PAD states that a mental health professional makes the determination regarding decision-making capacity. This decision needs to be in writing, and it cannot be made by the mental health representative. The opinion must be reviewed by a second mental health professional, who also needs to provide the decision in writing. These findings only activate the mental health care representative’s decision-making power. They have no other legal effect. They cannot be used to determine capacity for any other purpose.

The second possibility is that the individual states in the PAD that they wish to transfer their decision-making power regarding their mental health care to a representative. ­­­

How can I get started with drafting a PAD?

Legal planning tools may seem intimidating, time-consuming, or too expensive, but this is not always the case. Some legal documents, like PADs, can easily be drafted at home with the use of a template. Disability Rights NJ has prepared helpful materials that explain what a PAD is and what can be included in a PAD. Disability Rights NJ has also worked with advocates at the Mental Health Association of New Jersey to draft templates with instructions in English and Spanish. You can find those on our website HERE.

You can also record your PAD into a national registry, which mental health doctors and facilities can search. The registry is managed with the U.S. Living Will registry, so it can be accessed by a health provider even if the person has their mental health emergency outside of the state where they live. The database is secure and confidential. The registered information is not shared or sold. The website to register a PAD can be found here: https://www.state.nj.us/humanservices/dmhas/resources/mental/pad/.

We hope this overview of PADs, who they might benefit, how to use them, and what they do, was helpful. If you have questions about drafting a PAD for yourself or a loved one, please contact Disability Rights NJ, and we would be happy to speak with you further.

It’s Hurricane Season: How to Plan for an Emergency When You Have a Disability

2011 brought devasting floods to inland New Jersey with Hurricane Irene, only to be followed by
Superstorm Sandy, the next year, the fourth-worst storm in U. S. history. Though downgraded to
a tropical storm when it made landfall, Sandy was more than 1000 miles wide, three times the
size of a typical hurricane. Its destructive winds leveled many communities along the coastline as
it hit during high tide and merged with high- and low-pressure systems both north and south of
New Jersey, earning it the title of a “superstorm.”

The severity and frequency of storms like Sandy and Irene will continue to increase as the
Earth’s temperatures escalate, icebergs melt, and sea levels rise. New Jersey is especially
vulnerable due to its low-lying coastline along the Atlantic Ocean. According to the American
Meteorological Society, climate change will contribute to more hurricanes in general over the
next 15 years, predicting 32 super-extreme storms with winds exceeding 190 miles per hour. As
a result, residents of New Jersey, particularly the most vulnerable population, such as people
with disabilities, need to be ready for what comes.

What makes a hurricane dangerous?

A hurricane is a storm with violent wind that forms in the tropical waters and can cause
significant damage from heavy rains, violent wind, or life-threatening storm surge. Due to the
lethal nature of the storm, individuals may need to evacuate from their home. Long-standing
power outages following a hurricane may also require evacuation, as was prevalent following
Superstorm Sandy. Individuals with disabilities, especially those with mobility limitations and
those reliant on machines to power life-saving devices may have a more difficult time during
evacuation, as seen in the recent Hurricane Uri that devastated Texas and left the disability
community without aid.

Hurricane season is now upon us, having begun June 1, 2021. Because individuals with
disabilities are especially vulnerable, and the impact of a hurricane can affect all areas of the
state, it is especially important to make a plan for such an emergency and prepare an Emergency
Kit in the event you must evacuate.

How to make an Emergency Plan

  • Sign up for emergency alerts on your phone.
  • Create a support network of friends, family and neighbors that can help you in the event of an emergency. Include your health providers, medical equipment and assistive technology providers in your plan. Let them know how you will need them. Keep your contact list in a watertight container in your emergency kit. Learn more at www.ready.gov/kit.
  • Inform your support network where your emergency supplies are kept. You may want to give someone in your support network a key to your house or apartment.
  • Contact your health provider to know the process for getting an extended supply or replacement supply of medication should you need it.
  • Contact your local emergency management department and plan ahead for your individual needs. Learn about places to go in the event of evacuation and facilities with supplies you may need. Work with service providers of public transportation or paratransit to identify local or private accessible transportation options. Know the location of shelters that allow service animals if that applies to you.
  • Know the location and availability of more than one facility for dialysis. If dialysis is part of a health maintenance plan or other life-sustaining treatment, know where multiple facilities are located.
  • Know how to use medical equipment if a power outage occurs.
  • Wear medical alert tags or bracelets.
  • Make note of the best way to communicate with you in an emergency. If you have a communication disability, determine the best way others can communicate with you and let them know.
  • Plan how to evacuate with assistive devices or how to replace equipment if it gets lost or destroyed. Keep model information secure and note who provided it such as Medicaid, Medicare or private insurance. Also note the vendor or dealer.


How to Build an Emergency Kit

An Emergency Kit is a bag of essential supplies that you might need in an emergency, whether
you must evacuate or if you decide to shelter-in place. Below is a list of various types of to-go
bags that an individual might have ready depending on your circumstance.

Carry-on-you Kit

  • The carry-on-you kit is for the essential items you need to keep with you at all times. This might include cell phone and charger, flashlight and batteries, current prescription medication, emergency contact and health information.

Grab-and-go Kit

  • The grab-and-go kit is a bag, such as a small duffle that you can grab if you have to leave home in a hurry. It has the things you cannot do without and that you can carry and use without help from someone else. This should include any medication you take, your emergency contact list, health provider information, straws, mobility device chargers, a change of clothes, non-perishable meal bars, pet food for service animals, credit card, and cash.

Home Kit

  • The home kit includes water, food, straws, first aid supplies, clothing and bedding, tools, emergency supplies, flashlight and batteries, and disability-specific items. It includes all the things you would most likely need if you had to be on your own for days either at home or in an evacuation shelter.

Bedside Kit

  • The bedside kit includes items you may need if you are trapped in or near your bed and unable to get to other parts of your home. Some items would be important papers, cell phone, medication, bottled water, straws, flashlight and batteries.

Car Kit

  • The car kit includes items you will need if you have to evacuate the area and/or are in or near your vehicle during an emergency. This could include food, water, blankets, cell phone and charger, mobility device chargers, first aid kit, jumper cables and a toolbox.

Additional Resources for Planning

There are additional resources and actions you can take to be prepared for a hurricane or

Follow state and local Office of Emergency Management (OEM) social media platforms.
If your power goes out, but your cell phone is still working, you’ll be able to check online
for notifications about the pending emergency.

Sign up for Register Ready, New Jersey’s special needs registry for disasters, which
informs emergency management of people with disabilities who will need assistance
during an emergency. Sign up for alerts on your phone through NJ OEM.

Volunteer for core advisory groups in your county or online groups for your area to assist
in planning for emergencies and ensure the voices of people with disabilities are included
in emergency planning.