75-2a-104 - Capacity to make health care decisions -- Presumption -- Overcoming presumption.
75-2a-104. Capacity to make health care decisions -- Presumption -- Overcomingpresumption.
(1) An adult is presumed to have:
(a) health care decision making capacity; and
(b) capacity to make or revoke an advance health care directive.
(2) To overcome the presumption of capacity described in Subsection (1)(a), a physician,an APRN, or, subject to Subsection (6), a physician assistant who has personally examined theadult and assessed the adult's health care decision making capacity must:
(a) find that the adult lacks health care decision making capacity;
(b) record the finding in the adult's medical chart including an indication of whether theadult is likely to regain health care decision making capacity; and
(c) make a reasonable effort to communicate the determination to:
(i) the adult;
(ii) other health care providers or health care facilities that the person who makes thefinding would routinely inform of such a finding; and
(iii) if the adult has a surrogate, any known surrogate.
(3) (a) An adult who is found to lack health care decision making capacity in accordancewith Subsection (2) may, at any time, challenge the finding by:
(i) submitting to a health care provider a written notice stating that the adult disagreeswith the physician's finding; or
(ii) orally informing the health care provider that the adult disagrees with the finding.
(b) A health care provider who is informed of a challenge under Subsection (3)(a), shall,if the adult has a surrogate, promptly inform the surrogate of the adult's challenge.
(c) A surrogate informed of a challenge to a finding under this section, or the adult if nosurrogate is acting on the adult's behalf, shall inform the following of the adult's challenge:
(i) any other health care providers involved in the adult's care; and
(ii) the health care facility, if any, in which the adult is receiving care.
(d) Unless otherwise ordered by a court, a finding, under Subsection (2), that the adultlacks health care decision making capacity, is not in effect if the adult challenges the findingunder Subsection (3)(a).
(e) If an adult does not challenge the finding described in Subsection (2), the health careprovider and health care facility may rely on a surrogate, pursuant to the provisions of thischapter, to make health care decisions for the adult.
(4) A health care provider or health care facility that relies on a surrogate to makedecisions on behalf of an adult has an ongoing obligation to consider whether the adult continuesto lack health care decision making capacity.
(5) If at any time a health care provider finds, based on an examination and assessment,that the adult has regained health care decision making capacity, the health care provider shallrecord the results of the assessment in the adult's medical record, and the adult can direct theadult's own health care.
(6) A physician assistant may not make a finding described in Subsection (2), unless thephysician assistant is permitted to make the finding under the physician assistant's delegation ofservices agreement, as defined in Section 58-70a-102.
Amended by Chapter 99, 2009 General Session