Advance Directive Law
62A-15-1001. Definitions.
As used in this part:
(1)“Attending physician” means a physician licensed to practice medicine in this state who has primary responsibility for the care and treatment of the declarant.
(2)“Attorney-in-fact” means an adult properly appointed under this part to make mental health treatment decisions for a declarant under a declaration for mental health treatment.
(3)“Incapable” means that in the opinion of the court in a guardianship proceeding under Title 75, Utah Uniform Probate Code, or in the opinion of two physicians, a person’s ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that the person currently lacks the capacity to make mental health treatment decisions.
(4)“Mental health facility” means the same as that term is defined in Section 62A-15-602.
(5)”Mental health treatment” means convulsive treatment, treatment with psychoactive medication, or admission to and retention in a facility for a period not to exceed 17 days.
62A-15-1002. Declaration for mental health treatment.
(1)An adult who is not incapable may make a declaration of preferences or instructions regarding his mental health treatment. The declaration may include, but is not limited to, consent to or refusal of specified mental health treatment.
(2)A declaration for mental health treatment shall designate a capable adult to act as attorney-in-fact to make decisions about mental health treatment for the declarant. An alternative attorney-in-fact may also be designated to act as attorney-in-fact if the original designee is unable or unwilling to act at any time. An attorney-in-fact who has accepted the appointment in writing may make decisions about mental health treatment on behalf of the declarant only when the declarant is incapable. The decisions shall be consistent with any instructions or desires the declarant has expressed in the declaration.
(3)A declaration is effective only if it is signed by the declarant and two capable adult witnesses. The witnesses shall attest that the declarant is known to them, signed the declaration in their presence, appears to be of sound mind, and is not under duress, fraud, or undue influence. Persons specified in Subsection 62A-12-503(6) may not act as a witness.
(4) A declaration becomes operative when it is delivered to the declarant’s physician or other mental health treatment provider and remains valid until it expires or is revoked by the declarant. The physician or provider is authorized to act in accordance with an operative declaration when the declarant has been found to be incapable. The physician or provider shall continue to obtain the declarant’s informed consent to all mental health treatment decisions if the declarant is capable of providing informed consent or refusal.
(5) (a)An attorney-in-fact does not have authority to make mental health treatment decisions unless the declarant is incapable.
(b)An attorney-in-fact is not, solely as a result of acting in that capacity, personally liable for the cost of treatment provided to the declarant.
(c)Except to the extent that a right is limited by a declaration or by any federal law, an attorney-in-fact has the same right as the declarant to receive information regarding the proposed mental health treatment and to receive, review, and consent to disclosure of medical records relating to that treatment. This right of access does not waive any evidentiary privilege.
(d)In exercising authority under the declaration, the attorney-in-fact shall act consistently with the instructions and desires of the declarant, as expressed in the declaration.
If the declarant’s desires are unknown, the attorney-in-fact shall act in what he, in good faith, believes to be the best interest of the declarant.
(e)An attorney-in-fact is not subject to criminal prosecution, civil liability, or professional disciplinary action for any action taken in good faith pursuant to a declaration for mental health treatment.
(6) (a) A declaration for mental health treatment remains effective for a period of three years or until revoked by the declarant. If a declaration for mental health treatment has been invoked and is in effect at the expiration of three years after its execution, the declaration remains effective until the declarant is no longer incapable.
(b)The authority of a named attorney-in-fact and any alternative attorney-in-fact continues in effect as long as the declaration appointing the attorney-in-fact is in effect or until the attorney-in-fact has withdrawn.
(7)A person may not be required to execute or to refrain from executing a declaration as a criterion for insurance, as a condition for receiving mental or physical health services, or as a condition of discharge from a facility.
62A-15-1003. Physician and provider responsibilities—Provision of services contrary to declaration—Revocation.
(1)Upon being presented with a declaration, a physician shall make the declaration a part of the declarant’s medical record. When acting under authority of a declaration, a physician shall comply with it to the fullest extent possible, consistent with reasonable medical practice, the availability of treatments requested, and applicable law. If the physician or other provider is unwilling at any time to comply with the declaration, the physician or provider shall promptly notify the declarant and the attorney-in-fact, and document the notification in the declarant’s medical record.
(2)A Physician or provider may subject a declarant to intrusive treatment in a manner contrary to the declarant’s wishes, as expressed in a declaration for mental health treatment if:
(a)the declarant has been committed to the custody of a local mental health authority in accordance with Part 6; or
(b)in cases of emergency endangering life or health.
(3)A declaration does not limit any authority provided in Part 6 to take a person into custody, or admit or retain a person in the custody of a local mental health authority.
(4)A declaration may be revoked in whole or in part by the declarant at any time so long as the declarant is not incapable. That revocation is effective when the declarant communicates the revocation to the attending physician or other provider. The attending physician or other provider shall note the revocation as part of the declarant’s medical record.
(5)A physician who administers or does not administer mental health treatment according to and in good faith reliance upon the validity of a declaration is not subject to criminal prosecution, civil liability, or professional disciplinary action resulting from a subsequent finding that a declaration is invalid.
(6)None of the following persons may serve as an attorney-in-fact or as witnesses to the signing of a declaration:
(a)the declarant’s attending physician or mental health treatment provider, or an employee of that physician or provider.
(b)an employee of the division; or
(c)an employee of a local mental health authority or any organization that contracts with a local mental health authority.
(7) An attorney-in-fact may withdraw by giving notice to the declarant. If a declarant is incapable, the attorney-in-fact may withdraw by giving notice to the attending physician or provider. The attending physician shall note the withdrawal as part of the declarant’s medical record.
