Montana Code 53-21-1312. When a directive takes effect — determination of incapacity
53-21-1312. When a directive takes effect — determination of incapacity. (1) A directive is valid upon execution but takes effect only upon a determination of incapacity as provided in this part.
Terms Used In Montana Code 53-21-1312
- Agent: means a person designated in a directive to make health care decisions for the principal granting power. See Montana Code 53-21-1302
- Directive: means a mental health care advance directive or any part of a mental health care advance directive. See Montana Code 53-21-1302
- 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 a person who is licensed, certified, or otherwise authorized by the laws of this state to administer health care in the ordinary course of business or practice of a profession. See Montana Code 53-21-1302
- Incapacitated: means that a person is determined by the supervising health care provider or a court to lack the ability to give or withhold consent for medical care. See Montana Code 53-21-1302
- Principal: means a person who executes a directive, whether or not that directive designates an agent to make health care decisions. See Montana Code 53-21-1302
- Professional person: means :
(a)a medical doctor;
(b)an advanced practice registered nurse, as provided for in 37-8-202, with a clinical specialty in psychiatric mental health nursing;
(c)a licensed psychologist;
(d)a physician assistant licensed under Title 37, chapter 20, with a clinical specialty in psychiatric mental health; or
(e)a person who has been certified, as provided for in 53-21-106, by the department. See Montana Code 53-21-102
- Supervising health care provider: means the primary physician or, if there is no primary physician or the primary physician is not reasonably available, the health care provider who undertakes primary responsibility for a principal's health care. See Montana Code 53-21-1302
(2)A principal, agent, professional person, or health care provider may seek a determination regarding whether the principal is incapacitated or has regained capacity.
(3)For the purpose of triggering the directive, a determination that the principal lacks capacity or has regained capacity must be made by the supervising health care provider.
(4)For the purpose of triggering the directive, a directive may require the concurrence of two health care providers, one of whom must be the supervising health care provider in the determination of incapacity. The directive may require that one of the concurring providers is a psychiatrist or other physician.
(5)The determination of incapacity must consider all factors identified in the directive as evidence of incapacity.
(6)Unless otherwise specified in the directive, the authority of an agent becomes effective upon a determination that the principal lacks capacity and ceases to be effective upon a determination that the principal has regained capacity.