Oregon Advance Directives for Health Care (called Living Wills in some other states) must be in the form prescribed in Oregon Revised Statute (ORS) 127.531.
Until 2009, there was a restriction that prevented Health Care Representatives from admitting a person who signed an Advance Directive For Health Care to a facility for the treatment of a mental illness.
In 2009, Senate Bill (SB) 16 changed the law. A new statute, ORS 127.535(6), was enacted, which authorized a Health Care Representative to consent to hospitalization of the person who signed the Advance Directive for Health Care, for up to 18 days, to treat behavior caused by dementia.
In plain English, SB 16 allowed the Health Care Representative to put the person who signed the Advance Directive for Health Care into a locked facility and force treatment for dementia even if the person opposed this.
The law was not very clear in its application, since the person could arguably still rescind or cancel the Advance Directive for Health Care. In practice, many experts seemed to feel that if a person needed treatment for dementia, they lacked to mental capacity to cancel the Advance Directive for Health Care. ORS 127.545(1)(b).
The changes to statute brought about by SB 16 will end, and the law will revert to its former status on December 31, 2011. This is sometimes called “sunsetting.” This means that ORS 127.535(6) will change, and will no longer allow the involuntary commitment of the person, by their Health Care Representative, for up to 18 days, for the treatment of behavior caused by dementia.
However, on January 1, 2012, the provision of ORS 127.540(1) which restricted a Health Care Representative from admitting or retaining a person in a health care facility for care or treatment of a mental illness will be withdrawn from the law. After that point, there will be no restriction in statute that would prevent a Health Care Representative from forcing a person who signed an Advance Directive for Health Care to be admitted to or kept in a facility for care or treatment of mental illness. The admission can essentially be forever. It will no longer be restricted even by the 18 day limit that was in effect from 2009 through 2011.
It is unclear whether the power of the Health Care Representative can be restricted in this regard.
It is likely that if a person who signs an Advance Directive for Health Care writes in a special restriction limiting the power of the Health Care Representative, this power can be restricted, and the Health Care Representative will not be able to force a person into treatment or have them admitted to a facility for treatment of dementia or a mental illness against their will.
A person could still be admitted to care in such a facility by a Guardian. Guardianships are more expensive and are time consuming, but they require the involvement of a judge, who would have to agree that it is proper for the individual to be forced into a locked facility, or forced to accept treatment for dementia or other mental illness. This involvement of a judge, who is an unbiased and objective third party, can often be a valuable protection.
Steven A. Heinrich
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