30-4405. Advance mental health care directive; requirements; irrevocable, when; witnesses; release authorization form.
(1) An advance mental health care directive shall:
(a) Be in writing;
(b) Be dated and signed by the principal or, subject to subsection (5) of this section, another individual acting at the direction of the principal if the principal is physically unable to sign. The attorney in fact of the principal may not sign the directive for the principal;
(c) State whether the principal wishes to be able to revoke the directive at any time or whether the directive remains irrevocable during periods of incapacity. Failure to clarify whether the directive is revocable does not render it unenforceable. If the directive fails to state whether it is revocable or irrevocable, the principal may revoke it at any time;
(d) State that the principal affirms that the principal is aware of the nature of the directive and signs the directive freely and voluntarily; and
(e)(i) Be signed in the presence of a notary public who is not the attorney in fact of the principal; or
(ii) Be witnessed in writing by at least two disinterested adults as provided in subsections (4) and (5) of this section.
(2) An advanced mental health care directive shall be valid upon execution.
(3) To be irrevocable during periods of incapacity, the directive shall state that the directive remains irrevocable during periods of incapacity.
(4) A witness shall not be:
(a) The principal's attending physician or a member of the principal's mental health treatment team at the time of executing the directive;
(b) The principal's spouse, parent, child, grandchild, sibling, presumptive heir, or known devisee at the time of the witnessing;
(c) In a romantic or dating relationship with the principal;
(d) The attorney in fact of the principal or a person designated to make mental health care decisions for the principal; or
(e) The owner, operator, employee, or relative of an owner or operator of a treatment facility at which the principal is receiving care.
(5) Each witness shall attest that:
(a) The witness was present when the principal signed the directive or, if the principal was physically unable to sign the directive, when another individual signed the directive as provided in subdivision (1)(b) of this section;
(b) The principal did not appear incapacitated or under undue influence or duress when the directive was signed; and
(c) The principal presented identification or the witness personally knew the principal when the directive was signed.
(6) A principal may, in compliance with the federal Health Insurance Portability and Accountability Act of 1996, include in the directive a release authorization form stating the name of persons to whom information regarding the mental health treatment of the principal may be disclosed during the time the directive is activated, including, but not limited to, health care professionals, mental health care professionals, family, friends, and other interested persons with whom treatment providers are allowed to communicate if the principal loses capacity.
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