§ 9718. Petition for review by the Probate Division of the Superior Court

(a) A petition may be filed in the Probate Division of the Superior Court under this section by:

(1) a principal, guardian, agent, ombudsman, a mental health patient representative, or interested individual other than one identified in an advance directive, pursuant to subdivision 9702(a)(10) of this title, as not authorized to bring an action under this section;

(2) a social worker or health care provider employed by or directly associated with the health care provider, health care facility, or residential care facility providing care to the principal;

(3) the Defender General if the principal is in the custody of the Department of Corrections;

(4) a representative of the State-designated protection and advocacy system if the principal is in the custody of the Department of Mental Health; or

(5) an individual or entity identified in an advance directive, pursuant to subdivision 9702(a)(10) of this title, as authorized to bring an action under this section.

(b) A petition filed in the Probate Division of the Superior Court under this section shall include a supporting affidavit and may request:

(1) that the advance directive be revoked on the grounds that the principal lacked capacity to understand the nature of the advance directive, was under duress, or was the subject of fraud or undue influence when the advance directive was executed, except that, if the principal is deceased, this subdivision shall not apply to any part of an advanced directive making an anatomical gift;

(2) that the suspension or revocation of the advance directive be voided and the advance directive be reinstated on the grounds that at the time of the suspension or revocation, the principal was under duress or was the subject of fraud or undue influence;

(3) a declaratory judgment concerning the construction of an advance directive or the rights, legal status, or other legal relationship of the parties with respect to an advance directive; or

(4) an order for disposition of the remains of the principal.

(c) A principal, agent, or interested individual may file an petition in the Probate Division of the Superior Court with a supporting affidavit challenging a determination that the condition specified pursuant to subdivision 9702(a)(3) of this title is met.

(d) The principal or an agent may file an petition in the Probate Division of the Superior Court challenging a determination under subdivision 9706(a)(1) or subsection (c) of this title if:

(1) the petitioner provides notice to any agent, the principal, an interested individual, or a person entitled to notification of a determination of capacity under subdivision 9706(a)(1) or subsection (c) of this title prior to filing;

(2) the petition includes a supporting affidavit setting forth specific facts challenging a capacity determination under subdivision 9706(a)(1) or subsection (c) of this title;

(3)(A) prior to filing, the petitioner obtains a determination from a clinician that the principal's capacity is not as the principal's clinician has determined; or

(B) if the petitioner is unable to obtain the determination required by subdivision (A) of this subdivision (3), the petitioner includes in the supporting affidavit the facts regarding the attempts to obtain a second determination of capacity and supporting the challenge to the capacity determination by the petitioner's clinician; and

(4) the petitioner notifies the principal's clinician that an petition challenging the determination of capacity has been filed and provides the supporting determination or affidavit to the principal's clinician.

(e) The Probate Division of the Superior Court may limit the frequency of a capacity redetermination pursuant to subsection (d) of this section upon a finding that there have been multiple requests for redetermination, and that those requests have been frivolous or requested in bad faith.

(f) The agent, if any, shall have the opportunity to appear in any action brought under subdivision (b)(1), (2), or (3) of this section or subsection (c) or (d) of this section.

(g) A petitioner filing under subsection (b), (c), or (d) of this section shall, if doing so would be consistent with any obligations the petitioner has under HIPAA, provide notice to the following persons if known: the principal, an agent, a guardian, and interested individuals. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 338; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2013, No. 192 (Adj. Sess.), § 21; 2015, No. 23, § 52; 2017, No. 121 (Adj. Sess.), § 4a, eff. May 3, 2018.)