§ 9706. When advance directive becomes effective

(a) An advance directive regarding health care shall become effective:

(1) when a principal's clinician:

(A) determines, after speaking with an interested individual if one is reasonably available, that the principal lacks capacity, and makes specific findings regarding the cause, nature, and projected duration of the principal's lack of capacity;

(B) has made reasonable efforts to notify the principal of the determination; and

(C) has made reasonable efforts to notify the principal's agent or guardian of the determination; or

(2) when the circumstance or condition specified pursuant to subdivision 9702(a)(3) of this title has been met; or

(3) upon execution, if specified pursuant to subdivision 9702(a)(4) of this title.

(b) When a principal has a clinician, the clinician shall certify in the principal's medical record the facts that have caused an advance directive to become effective.

(c) Upon a determination of need by the principal's clinician, or upon the request of the principal, agent, guardian, ombudsman, a mental health patient representative, health care provider, or any interested individual, the principal's clinician, another clinician, or a clinician's designee shall reexamine the principal to determine whether the principal has capacity. The clinician shall document the results of the reexamination in the principal's medical record and shall make reasonable efforts to notify the principal and the agent or guardian, as well as the individual who initiated the new determination of capacity, of the results of the reexamination, if providing such notice is consistent with the requirements of HIPAA.

(d) The authority of an agent to make health care decisions for a principal shall cease in accordance with subsection 9711(c) of this title.

(e) An advance directive regarding disposition of the principal's remains shall become effective upon the death of the principal. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2013, No. 192 (Adj. Sess.), § 19; 2017, No. 121 (Adj. Sess.), § 2a, eff. May 3, 2018.)