[§327G-7]  Presumption of capacity;
determination of lack of capacity; recovery of capacity.  (a)  A principal
is presumed to have capacity to make mental health care decisions and to
execute or revoke an advance mental health care directive or power of attorney
designating an agent.  Even if the principal has an advance mental health care
directive, the principal has the right to make decisions regarding mental
health care or mental health treatment, so long as the principal has capacity.



(b)  The fact that a principal has executed an
advance mental health care directive shall not create a presumption, nor
constitute evidence or an indication, that the principal is mentally
incompetent or lacks capacity.



(c)  This chapter shall not create a
presumption concerning the intention of an individual who has not executed or
who has revoked an advance mental health care directive or power of attorney.



(d)  For the purposes of this chapter, the
determination that a principal lacks capacity shall be made by the supervising
health care provider who is a physician and one other physician or licensed
psychologist after both have conducted an examination of the principal.  Upon
examination and a joint determination that the principal lacks capacity, the
supervising health care provider shall promptly note the determination in the
principal's medical record, including the facts and professional opinions that
form the basis of the determination, and shall promptly notify the agent that
the principal lacks capacity and that the advance mental health care directive
has been invoked.



(e)  The determination that a principal has
recovered capacity shall be made by the supervising health care provider who is
a physician.  The supervising health care provider shall promptly note the
recovery of capacity in the principal's medical record, and shall promptly
notify the agent that the principal has recovered capacity. [L 2004, c 224, pt
of §2]