26B-5-313.  Declaration for mental health treatment.

(1)  An adult who is not incapable may make a declaration of preferences or instructions regarding the adult’s mental health treatment. The declaration may include, but is not limited to, consent to or refusal of specified mental health treatment.

Terms Used In Utah Code 26B-5-313

  • Adult: means an individual 18 years old or older. See Utah Code 26B-5-301
  • Attorney-in-fact: A person who, acting as an agent, is given written authorization by another person to transact business for him (her) out of court.
  • 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. See Utah Code 26B-5-301
  • Designee: means a physician who has responsibility for medical functions including admission and discharge, an employee of a local mental health authority, or an employee of a person that has contracted with a local mental health authority to provide mental health services under Section 17-43-304. See Utah Code 26B-5-301
  • Fraud: Intentional deception resulting in injury to another.
  • 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. See Utah Code 26B-5-301
  • 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. See Utah Code 26B-5-301
  • Person: means :Utah Code 68-3-12.5
  • Physician: means an individual who is:
(a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
(b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act. See Utah Code 26B-5-301
  • Treatment: means psychotherapy, medication, including the administration of psychotropic medication, or other medical treatments that are generally accepted medical or psychosocial interventions for the purpose of restoring the patient to an optimal level of functioning in the least restrictive environment. See Utah Code 26B-5-301
  • Writing: includes :Utah Code 68-3-12.5
    • (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 26B-5-314(6) may not act as witnesses.

    (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 the attorney-in-fact, 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.

    Renumbered and Amended by Chapter 308, 2023 General Session

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