Unless you state otherwise, your primary physician will determine whether or not you have capacity. If your primary physician is unavailable, it would be the physician actually giving you care at the time. You can name your primary physician in your document.

Even though you can name a general physician, you should name a doctor who both knows you and who is likely to have some contact with you when you are unable to make mental health care decisions. For most people, this would be a psychiatrist.

If you want the determination of your incapacity to be made by some way other than simply by your primary physician, you need to state how you want it to happen. An alternative might be:

• when your named primary physician or psychiatrist has found you incapacitated and he has obtained another doctor's opinion that you are incapacitated,
• when an administrative hearing officer finds you incapacitated in a forced medication hearing held in a psychiatric hospital. (Before you choose this option, make sure that the hospital you are likely to be admitted to uses this process. Some do not.)

Up until your instructions and power of attorney take effect, you make decisions on your own.

Some people write advance directives in order to get treatment and hopefully avoid a guardianship proceeding, an administrative hearing, or having to go to the hospital. These individuals should consider having the incapacity determination happen sooner than later. Leaving it to the primary physician or psychiatrist might be a good choice for these individuals.

Other people are afraid that they may want to change their minds about their instructions. They don't want to be cut off too soon from changing their instructions. These individuals may want to state that their instructions don't take effect until they have had a more formal incapacity determination, such as after a second physician's opinion.