What is a Psychiatric Advance Directive and Why Do I Need One?

Nima Ashtyani
September 5, 2023

If you or a loved one has lived with a mental illness and/or a substance use issue, you may be aware of how important it is to make your wishes for your health care known before a crisis occurs.  When our own wishes are not known or are not followed, severe emotional trauma may occur within the walls of the very hospitals that are meant to help us get better.  A Psychiatric Advance Directive (PAD) is the way you can document your wishes for your psychiatric care at a time when you are calm, able to consult with an attorney, and not in a state of crisis.

The Right to a Psychiatric Advance Directive is Guaranteed in New Jersey Law

New Jersey is one of only 25 states that have laws that provide a way for people to make their wishes explicit in case they are incapacitated due to a mental health crisis.  The New Jersey Advance Directive for Mental Health Care Act gives New Jersey residents the right to:

  1. Make their wishes for treatment, or refusal of treatment, known.
  2. Appoint a representative who has the authority to speak on their behalf if they are incapacitated.

 The New Jersey State Legislature specifically recognized the challenges facing persons with mental health issues in the text of the Act:

“The issues affecting persons with mental illness and their psychiatric needs warrant enactment of a separate statute governing advance directives for these individuals, who: find their civil rights and due process protections frequently compromised; often lack the resources, societal supports and self-esteem needed to make advance directives for health care work for them; and are disadvantaged by the fact that many physicians and attorneys are unaware of the specific issues that typically enter into the decisions that a person with mental illness may make for himself when in crisis.”

Those With Mental Health Issues Have Rights – But They Didn’t Always

It is only fairly recently that persons with mental illness have been recognized as having rights.  As Robert Whitaker writes in detail in Mad in America: Bad Science, Bad Medicine, and the Enduring Mistreatment of the Mentally Ill, mental health treatment has often involved subjecting patients to treatments against their will.  No matter what the diagnosis, people with mental health conditions have the right to accept or refuse treatments, including the right to refuse medications and to designate which medications they do and do not wish to take. 

Rights Only Exist If You Use Them: Make Your Own Psychiatric Advance Directive

However, as with most rights, the right to choose or refuse mental health treatment does not exist if you either do not know your rights or are incapable of enforcing them.  That’s why it’s important to work with an attorney to create a Psychiatric Advance Directive. 

It Could Happen To Anyone: An Example

Just like with physical health emergencies, a mental health crisis may arise without warning.  As a hypothetical example, based on a number of cases:

“Andy” received a visit from Emergency Medical Services (EMS) on the day when his fiancée passed away.  He had written on social media, “I do not know how to go on living,” and a concerned but misguided relative called 911.  Though Andy had no prior history of psychiatric diagnosis or treatment, he was coerced into going with the EMS to the local hospital, where a hospital social worker pressured him into signing in for inpatient treatment. 

During his hospital stay, both clinicians and other patients observed that Andy did not seem to be suffering from any serious mental health episode.  He had made an unwise post on social media on one of the worst days of his life, totally unaware of the potential consequences.  As a result of his psychiatric hospitalization, Andy was not able to be present for the first four days after his fiancée’s death to make arrangements or grieve with her family.  His license to carry firearms was taken away, causing him to lose a job that required him to carry a weapon.  It would never have occurred to Andy that he might end up at a hospital Emergency Room being threatened with psychiatric hospitalization, and he was not aware that he could have a Psychiatric Advance Directive.

Had he had this document in place, he could have stated in advance that he did not want to be hospitalized.  He could have also designated a representative, known under New Jersey law as a Mental Health Care Representative, to speak for him about his wishes in the event that the hospital deemed him incompetent.  Even the process of discussing a Psychiatric Advance Directive with an attorney could have helped Andy think through what his wishes would be from a calm, cool perspective.  He would have been better informed and less likely to succumb to pressure from medical personnel who, while well-intentioned, did not know him and did not make him aware of the potentially serious consequences of his hospitalization.

It’s Not a Guarantee, But It Increases the Chances that Your Wishes Will Be Followed

A Psychiatric Advance Directive is not a guarantee that you will never be hospitalized against your will or forced to take medications, but it increases the chances that your wishes will be followed.  According to the National Resource Center on Psychiatric Advance Directives, your wishes as articulated in a Psychiatric Advance Directive may not be followed under the following circumstances: “(1) the instructions “violate the accepted standard of mental health care or treatment”; (2) the instructions require unavailable treatment; (3) the instructions violate a court order for treatment, or other law; or (4) the instructions “endanger the life or health” of you or another person.”

Inform Your Primary Care Provider, Family, and Others

Be sure that your Primary Care Provider, any specialists you see such as a psychiatrist, your therapist if you have one, and your attorney all have a copy of your Psychiatric Advance Directive.  Your next of kin should have one as well, in addition to anyone else who might be called upon in an emergency.  Make sure that your PCP enters your Psychiatric Advance Directive into your medical records. Most urban areas have a Health Information Exchange system where hospitals can easily access a patient’s medical records even if they have previously received their care elsewhere. 

Working With An Attorney Makes Sure You Get It Right And Helps You Think Through the Issues

Even the process of working with an attorney to create a PAD can help you better understand the issues you may face in case of a psychiatric emergency and be prepared.  As people age, sudden events such as a stroke or even a bacterial infection may cause them to be unexpectedly in a psychiatric as well as physical emergency.  Having your wishes documented in advance and appointing a person you trust as your Mental Health Care Representative greatly increases the chances that you will receive the care you want, and not be subjected to treatments against your will.


We are constantly on the lookout for resources and information that can help our clients. While online articles and blog posts are no substitute for legal advice and consultation, they are useful as a component of your due diligence and may help you consider questions or concerns you did not previously have. The blog posts and articles posted on our site are offered to help our clients, and potential clients, with that due diligence. The posts provided here are not legal advice. The laws of each state are not the same and what may be true in one place, may not be true in another. Furthermore, the nuances of each legal matter may make good advice to one-person, bad advice to another.

Please enjoy the articles on our site, please use them in your research, but please do not rely on them entirely.

If you have a legal matter that you may require assistance with, please contact our New Jersey office or call us at (201) 464-2040 and schedule a consultation to discuss your legal matters. We look forward to the opportunity to work with you.

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