Sec. 35. (a) For purposes of this section, the term “declarant” includes an individual who has not executed an advance directive or who has no unrevoked advance directive in effect.

     (b) A declarant is presumed to be capable of making health care decisions for the declarant unless the declarant is determined to be incapacitated. The declarant’s desires are controlling while a declarant has decision making capacity. Each physician or health care provider must clearly communicate to a declarant who has decision making capacity the treatment plan and any change to the treatment plan before implementation of the plan or a change to the plan. Incapacity may not be inferred from a person’s voluntary or involuntary hospitalization for mental illness or from the person’s intellectual disability.

     (c) When a declarant is incapacitated, a health care decision made on the declarant’s behalf by a health care representative is effective to the same extent as a decision made by the declarant if the declarant were not incapacitated. However, if:

(1) a health care representative makes and communicates a health care decision; and

(2) a health care provider concludes that carrying out that health care decision would be medically inappropriate or clearly contrary to the declarant’s best interests;

then the health care provider has the same right to refuse to carry out that decision as if that decision were made and communicated directly by the declarant at a time when the declarant was not incapacitated.

     (d) If a declarant’s capacity to make health care decisions or provide informed consent is in question, the declarant’s treating physician shall evaluate the declarant’s capacity and, if the treating physician concludes that the declarant lacks capacity, enter that evaluation in the declarant’s medical record.

     (e) If the treating physician is unable to reach a conclusion under subsection (d) about whether the declarant lacks capacity, the treating physician and other health care providers shall treat the declarant as still having capacity to make health care decisions and provide informed consent, until a later evaluation occurs under this section after the passage of time or after a change in the declarant’s condition.

     (f) This chapter does not limit the authority of a probate court under IC 29-3 to make determinations about an individual’s incapacity or recovery from a period of incapacity.

     (g) A determination made under this section that a declarant lacks capacity to make health care decisions may not be construed as a finding that a declarant lacks capacity for any other purpose.

As added by P.L.50-2021, SEC.63.