Who Can Create One and Who Can Serve as Agent
Any adult can create a mental health care power of attorney. The document names one or more agents and may also name alternates. The alternate steps in if the primary agent is unable or unwilling to act. There is one firm restriction: the agent cannot be someone directly involved in providing healthcare to the principal when the document is executed.
An adult, known as the principal, pursuant to section 36-3282 may designate another adult or adults, known as the agent, to act as an agent and to make mental health care decisions on that person's behalf.
A.R.S. § 36-3281(A)If someone does not have a mental health care power of attorney, an agent named under a general healthcare power of attorney may still make mental health treatment decisions. Certain limitations apply under A.R.S. 36-3283. Creating a separate mental health care power of attorney gives you more control over who has authority to make decisions on your behalf.
What "Incapable" Means Under This Statute
The mental health care power of attorney only activates when the principal is found "incapable." This is a specific legal standard. A licensed physician who specializes in neurology or psychiatry, or a licensed psychologist, must determine that the person lacks the ability to give informed consent as defined in A.R.S. 36-501.
"Incapable" means that in the opinion of a physician who is licensed pursuant to title 32, chapter 13 or 17 and who is a specialist in neurology or psychiatry or a psychologist who is licensed pursuant to title 32, chapter 19.1, a person lacks the ability to give informed consent as defined in section 36-501.
A.R.S. § 36-3281(D)This is an important safeguard. The agent does not simply step in when there is a disagreement about treatment. A qualified professional must first make a clinical determination. This protects the principal's autonomy while ensuring that decisions can be made when the principal truly cannot participate.