• Changes to State Law on Mental Health Advance Directives

Effective July 25, 2021: Changes to State Law on Mental Health Advance Directives

Mental Health Advanced Directives (MHADs) are an advance care planning tool for people to specify their preferences regarding mental health treatment (and now more broadly, “behavioral health treatment” under the new law) in the event they are incapable to make their own treatment decisions, such as in the event of an acute crisis related to mental health or substance use.  More information on MHAD.

ESSB 5370 (2021), makes several changes to the law. Effective July 25, 2021, these changes include:

  • Authorizing notaries public to acknowledge MHADs;
  • Replacing references to “mental health” conditions and treatment to “behavioral health” conditions and treatment;
  • Allowing youth aged 13 and older to execute MHADs; and
  • Updating the required form for ease of use and understanding.

A complete list of changes is below.


All hospitals, including acute care hospitals and psychiatric hospitals, may receive a MHAD from a patient or their loved one and asked to follow its directions. Emergency departments and inpatient units providing psychiatric and/or substance use disorder services are most likely to care for people with MHADs.
In addition, hospitals certified as Evaluation and Treatment facilities (E&T) are subject to requirements as licensed Behavioral Health Agencies (BHAs) under Chapter 246-341 WAC to maintain procedures for assuring a person’s right to make a MHAD and protocols for responding to requests consistent with a person’s MHAD. 

Understanding a MHAD is especially important for those who work with and care for people with mental health or substance use disorder-related needs, including clinical and administrative staff. 


Effective July 25, 2021, the law governing MHADs is updated in several ways. The changes include:

  • Changing references to “mental health” to “behavioral health”, including in the context of conditions that could trigger use of a MHAD and preferred services requested in a MHAD. Behavioral health disorder means “a mental disorder, substance use disorder or co-occurring mental health and substance use disorder.” A MHAD does not mandate a hospital to offer services it does not provide or are not available (or which would violate accepted standard of care or would endanger any person’s life or health). However, hospitals are required to act in accordance with the MHAD’s provision to the fullest extent possible. For requirements on compliance and noncompliance with a MHAD, see RCW 71.32.150
  • Authorizing a notary public or other individual authorized by law to acknowledge the MHAD. Under current law, the MHAD must be signed by two witnesses who know the person and can attest to the person not appearing to be acting under incapacity, fraud, undue influence or duress. Adding a notary public option is an important tool to making it easier for a person to create a MHAD. 
  • Permiting MHADs for person’s aged 13 to 17. Under the new law, a person who is at least 13 years old but under the age of majority is considered to have capacity for purposes of executing a MHAD if the person is able to demonstrate they are capable of making informed decisions related to behavioral health care. This change was made to reflect the fact that the age of consent for behavioral health care in Washington is 13. Note that this new authorization for young people does not restrict the right of a parent to seek behavioral health evaluation and treatment for a non-consenting adolescent using Family Initiated Treatment under chapter 71.34 RCW
  • Clarifying that the person authorized as an agent of the incapacitated person under the MHAD may also act as the person’s personal representative for purposes of HIPAA. Advocates were concerned that the existing law was not sufficiently clear about authorizing a person’s agent, typically a family member such as a parent, to obtain and receive a person’s protected health care information. A common complaint from family members is that hospitals do not disclose information about a patient when the hospital is authorized to do so, including when there is an MHAD authorizing the agent as personal representative. These changes are intended to help hospitals appropriately release information to the agent.
  • Terminating an agent’s authority under the MHAD if an action is filed to dissolve or annul the agent’s marriage or state registered participation, or for legal separation. Under existing law, no such automatic termination of authority was permitted.
  • Authorizing a Substance Use Disorder Professional to participate in an incapacity determination that could trigger provisions of a MHAD. Substance Use Disorder Professional “means a person certified as a substance used disorder professional by the department of health” under the Involuntary Treatment Act (ITA, chapter 71.05 RCW). There must be an incapacity determination made according to one of the statutorily prescribed ways prior to following directions made by the person’s MHAD. Under current law, one of those ways involves a Mental Health Professional (as defined under the ITA) and a health care provider making the determination. Recognizing the broader set of conditions that may trigger need for resort to a MHAD, the law has been updated to grant a SUDP to participate in that initial determination. See requirements for incapacity determinations at RCW 71.32.110 and RCW 71.32.130.
  • Updating the MHAD form for ease of use and understanding. The bill modifies the form provided in statute for the MHAD. The state law requires that this specific form be used. Hospitals are advised to review the new form in detail as part of their protocol review and education of hospital staff.

The prescribed form is found at RCW 71.32.360. Among other changes, the modifications to the form include: 

  • Removal of a long notice section before the start of the content of the MHAD;
  • Streamlining and simplifying certain language used in the body of the form;
  • Adding a “my care needs section” near the front of the form to allow a person to describe what services and support work for them, the person’s diagnoses, medications and best approach for treatment; and
  • Explicitly granting the person’s agent the authority to act as a personal representative under HIPAA.


A mental health advance directive (MHAD) is a legal document that allows a person to declare with legal effect their preferences for receiving mental health care in the event they are not capable of making their own decisions, such as when the person is in the midst of a mental health crisis (chapter 71.32 RCW). A determination of incapacity must be made prior to relying on a MHAD.

Generally, a MHAD may include:

  • A person’s preferences and instructions for mental health treatment;
  • Consent and refusal to consent to specific types of mental health treatment;
  • Consent to admission to and retention in a facility for mental health treatment for up to 14 days; and
  • Suggested alternative responses that may supplement or be in lieu of direct treatment; and,
  • Appointment of an agent to make mental health treatment decisions on behalf of the person, including empowering the agent to consent to voluntary mental health treatment on behalf of the person. 

A MHAD does not create an entitlement to behavioral health or medical treatment or obligate any health care provider or facility to pay costs associated with treatment. For a full list of limitations on what preferences a MHAD may provide see RCW 71.32.070.

Thank you to Washington State Hospital Association for this information.