Philadelphia Mental Health and Aging Resource Guide

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Getting Help

Legal Terminology

There are some important legal terms for older adults to consider.

Involuntary Commitment or 302

Involuntary Commitment means admitting someone to a hospital without his or her permission. To be involuntarily admitted, you must have a mental illness that lessens your capacity to exercise self-control, judgment, and discretion, so that you pose a clear and present danger of harm to others or yourself. This is legal language meaning that you have no control over your actions and that you might hurt yourself or someone else.

Guardianship

Guardianship is a legal process whereby an individual petitions the court to be appointed to make decisions for a person who is not capable of making decisions for him- or herself. Having a guardian appointed for a mentally ill person over 18 should not be considered until all other options have been exhausted. Appointing a guardian can totally or severely limit the freedom of a person as it involves denying some or all of the person's civil rights by limiting his rights to make his own decisions. Application for guardianship must be filed in the proper court where the mentally ill person lives. A doctor's or other qualified evaluator's examination and testimony are also required. It is best to seek the advice of a lawyer if you are considering this option.

Health Care Directives

Legal tools are available to help anyone plan for a time when he or she might not be able to make medical treatment decisions. This could happen because of an accident, unexpected illness or mental disorders and dementia. All adults should make these plans to ensure that their wishes about medical treatment will be carried out if they become incapacitated. Hospitals and long-term care facilities will request information about health care directives at the time of admission, and it is best to have resolved these issues earlier, in a less stressful situation.

Power of Attorney

A power of attorney (POA) allows a competent individual to have someone else to act on his or her behalf. POAs can be very broad, allowing someone to act on behalf of an individual in all aspects of their life: financial, health care, etc. A POA can also be limited by spelling out what kinds of decisions a person can make on behalf of another. It is important to know that in Pennsylvania, unless otherwise specified, all POAs are considered in effect, or active, as of the date signed by all parties, and are "durable," meaning they remain in effect even after someone becomes incapacitated or disabled.

A POA can be limited to take effect only after disability has occurred, but this must be specifically written into the document. Also, an individual can rescind or void a POA at any time that they have the mental capacity to do so. The POA does not allow an individual acting as agent or an attorney "in fact" to override the wishes of the principal person (the person who issued the POA). While it is possible to simply handwrite a POA, with both parties' signatures and a notary seal, it is advised, because of the complexities that can be involved, to consult a lawyer.

Durable Power of Attorney for Health Care Decisions (Medical Durable Power of Attorney)

The Durable Power of Attorney for Health Care Decisions permits one person, "the agent," to make health care decisions on behalf of another. This permission is to be used when the person granting the power, "the principal," becomes incapacitated.

It is designed to extend the decision-making capacity of the individual into an unknown future, through instructions to some trusted person. The agent has broad authority, so it is important to choose an agent you can trust to do what you want.

Living Will

A Living Will allows a person to instruct the physician about his or her wishes regarding extraordinary life-sustaining measures in the event of terminal illness or permanent unconsciousness of any kind. Unlike the Medical Durable Power of Attorney for Health Care Decisions, a Living Will only goes into effect when two physicians certify that the person's condition is terminal. It is not as flexible, because it provides specific instructions that a physician must follow at the end of life. It does not allow for medical decisions that must be made before that point. It also does not allow for an agent to make any decision in the best interests of the person. A person may have both documents guide his or her care.

Page updated: March 1, 2005.
Mental Health/Aging Advocacy Project | a project of the Mental Health Association of SE PA | 1211 Chestnut Street | Philadelphia, PA 19107 | 215-751-1800 | www.mhaging.org
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