§327G-3 Advance mental health care
directive; designation of agent. (a) A competent adult or emancipated
minor may make a written advance mental health care directive declaring
preferences or instructions regarding mental health treatment. The preferences
or instructions may include consent to, or refusal of, mental health
treatment. An advance mental health care directive may be a part of, or
combined with, a written advance health care directive under chapter 327E.
(b) A principal, in a power of attorney
contained in the written advance mental health care directive, may designate a
competent adult to act as an agent to make any and all mental health care and
mental health treatment decisions on behalf of the principal when the principal
lacks capacity, unless otherwise specified or limited by the advance mental
health care directive. A principal, in a power of attorney contained in the
written advance mental health care directive, may also designate competent
adults to act as alternate agents, in the order so designated, if the original
agent is unable or unwilling to act.
(c) A written advance mental health care
directive may include the principal's nomination of a guardian. The court
shall make its appointment of a guardian in accordance with the principal's
most recent nomination in a valid and unrevoked advance mental health care
directive, except for good cause shown.
(d) No individual shall be required to execute
or refrain from executing an advance mental health care directive or power of attorney
as a condition for insurance coverage, receiving mental or physical health
services, receiving privileges while in a health care institution, or as a
condition of discharge from a health care institution.
(e) An advance mental health care directive is
valid and effective only if it is in writing, contains the date of its
execution, is signed by the principal, and is witnessed in one of the following
methods:
(1) Signed by at least two competent adults, except
those as provided in subsection (f), each of whom shall attest that the
principal is known to them, signed the advance mental health care directive in
their presence, and appears to be of sound mind and not under duress, fraud, or
undue influence; or
(2) Acknowledged before a notary public within this
State.
(f) None of the following may serve as a
witness to the signing of an advance mental health care directive:
(1) A health care provider, supervising health care
provider, or an employee or relative of a health care provider or supervising
health care provider;
(2) An owner, operator, or employee of a health care
provider or health care institution in which the principal is a patient or
resident;
(3) A person related to the principal by blood,
marriage, or adoption; or
(4) The agent or alternate agents.
(g) None of the following may serve as an
agent or alternate agent under a designation in a power of attorney contained
in an advance mental health care directive:
(1) A health care provider, supervising health care
provider, or an employee of a health care provider or supervising health care
provider, unless that person is related to the principal by blood, marriage, or
adoption; or
(2) An owner, operator, or employee of a health care
provider or health care institution in which the principal is a patient or
resident, unless that person is related to the principal by blood, marriage, or
adoption.
(h) An advance mental health care directive
and power of attorney becomes effective when it is delivered to a health care
provider, supervising health care provider, or health care institution and
remains effective until revoked.
(i) An advance mental health care directive
executed prior to [July 13, 2004,] shall be valid for the purposes of this
chapter if it complies substantially with this chapter or if it was executed in
compliance with the laws of the state where it was executed. [L 2004, c 224, pt
of §2; am L 2005, c 22, §15]
