A long time ago, in a land far, far away (well, Juneau is pretty far away) there was a group of legislators who tried to do the right thing.
They wanted to update and improve the laws about what happens when someone can’t make their own decisions about medical care. And as part of that change, they wanted to offer a form people could use, so that people could say for themselves who would make those decisions for them.
They wrestled with this for four long years. And finally, one day, they had it! They passed a law which included an optional form called an “Advance Health Care Directive,” which people could use. And they congratulated themselves on how good this law was, said it would be an example to other states, and went home.
And we all lived happily ever after.
Except for one little thing.
People don’t read instructions.
You doubt me? I have conclusive proof that they don’t. In the statutory version of the Advance Health Care Directive, there is a section on mental health treatment. It includes options about three things that don’t affect most folks but are pretty important for a few. You can decide, in advance, whether your agent (that is, your decision-maker) can authorize psychotropic medications, electro-convulsive treatment (better known as “electric shock therapy”), and being held in a mental health facility for up to 17 days.
The options on this mental health section are to check “I consent” or check “I do not consent”. Or, of course, you can leave it blank. Which is what most people do if this isn’t really an issue for them.
But if they leave it blank, they clearly did not read the instructions. There are lots and lots of instructions on this form, and in front of the mental health section, it says, “If you are satisfied to allow your agent to determine what is best for you in making these mental health decisions, you do not need to fill out this part of the form”.
Did you get that? If you leave it blank, you have given your agent the authority to subject you to these treatments. They can force you to take serious medications which change your brain chemistry. They can have you hooked up to the ‘One Flew Over the Cuckoo’s Nest’ machines. They can have you held in API for two-and-a-half weeks. And all of this would be against your will, with no recourse to a judge or lawyer.
(Fun fact: Why is it 17 days? Because normally if you are committed to a mental institution against your will, you are entitled to a hearing, with a judge to decide it and a lawyer to represent you, within three days. If the judge decides you need to be there, you get another hearing two weeks later. Seventeen days means they have skipped the first hearing, so it is when you would otherwise be getting the second hearing.)
Here’s my proof that people don’t read lengthy instructions. I have had a lot of people come into my office who filled out the statutory version of the form. The vast majority of them – between 80 and 90% – left this part blank. And when I ask them whether they intended to give their agent the authority to consent to these treatments, they tell me very clearly that they did not. And yet because they left the boxes blank, they gave that authority.
Why did this happen in the first place? The legislators were trying to pull together different pieces from different parts of the statutes. In the process, they pulled over a section that had been in the mental health statutes, which allowed for someone to consent to these treatments with a separate form. But in doing that, they turned it from a form someone would not be filling out unless they had serious mental health issues and wanted to consent to letting someone else make these calls, to part of a form being used by people who, typically, don’t want to consent to this sort of thing.
But the real question is, why haven’t they fixed it? When I started this column with “a long time ago,” I meant that. This was passed 18 years ago. I have been kvetching about it ever since, and it never gets fixed.
But it’s supposed to be a nice fairy tale, and fairy tales aren’t supposed to end with mistakes, are they?
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. “Kvetching” is a Yiddish word; I could have used a different word but wasn’t sure it would get past the censors.
