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

(b)  The fact that a principal has executed anadvance mental health care directive shall not create a presumption, norconstitute evidence or an indication, that the principal is mentallyincompetent or lacks capacity.

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

(d)  For the purposes of this chapter, thedetermination that a principal lacks capacity shall be made by the supervisinghealth care provider who is a physician and one other physician or licensedpsychologist after both have conducted an examination of the principal.  Uponexamination and a joint determination that the principal lacks capacity, thesupervising health care provider shall promptly note the determination in theprincipal's medical record, including the facts and professional opinions thatform the basis of the determination, and shall promptly notify the agent thatthe principal lacks capacity and that the advance mental health care directivehas been invoked.

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