(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.
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Terms Used In Hawaii Revised Statutes 327G-7

  • Advance mental health care directive: means a written document expressing preferences, instructions, or a power of attorney for mental health treatment. See Hawaii Revised Statutes 327G-2
  • Agent: means a competent adult designated in a power of attorney contained in an advance mental health care directive to make a mental health care decision for the individual granting the power and includes all designated alternate agents. See Hawaii Revised Statutes 327G-2
  • Capacity: means a principal's ability to understand the significant benefits, risks, and alternatives to proposed mental health care or treatment and to make and communicate a mental health care decision. See Hawaii Revised Statutes 327G-2
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Health care provider: means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession. See Hawaii Revised Statutes 327G-2
  • Mental health care: means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a principal's mental condition, including:

    (1) Selection and discharge of health care providers and institutions;

    (2) Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication; and

    (3) Approval or disapproval of electroconvulsive treatment. See Hawaii Revised Statutes 327G-2

  • Mental health treatment: means any form of treatment used for the treatment of mental illness, including but not limited to electroconvulsive treatment, the use of psychotropic medication, and admission to and retention in a health care facility for the care or treatment of mental illness. See Hawaii Revised Statutes 327G-2
  • Physician: means an individual authorized to practice medicine or osteopathy under chapter 453. See Hawaii Revised Statutes 327G-2
  • Power of attorney: means the designation of an agent to make mental health care decisions for the principal granting the power. See Hawaii Revised Statutes 327G-2
  • Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
  • Principal: means a competent adult or emancipated minor who has executed a written advance mental health care directive or power of attorney for mental health care. See Hawaii Revised Statutes 327G-2
  • Psychologist: means an individual authorized to practice psychology under chapter 465. See Hawaii Revised Statutes 327G-2
  • Supervising health care provider: means the primary physician or the physician's designee, or the health care provider or the provider's designee who has undertaken primary responsibility for a principal's health care, that includes mental health care. See Hawaii Revised Statutes 327G-2
(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.

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