§ 16-36-7-35 — Incapacity of declarant

Indiana § 16-36-7-35

• Jurisdiction: Indiana
• Title 16: HEALTH
• Art. 36: MEDICAL CONSENT
• Ch. 7: Health Care Advance Directives

Text

(a) For purposes of this section, the term
"declarant" includes an individual who has not executed an advance
directive or who has no unrevoked advance directive in effect.
(b) A declarant is presumed to be capable of making health care
decisions for the declarant unless the declarant is determined to be
incapacitated. The declarant's desires are controlling while a declarant
has decision making capacity. Each physician or health care provider
must clearly communicate to a declarant who has decision making
capacity the treatment plan and any change to the treatment plan before
implementation of the plan or a change to the plan. Incapacity may not
be inferred from a person's voluntary or involuntary hospitalization for
mental illness or from the person's intellectual disability.
(c) When a declarant is incapacitated, a health care decision made
on the declarant's behalf by a health care representative is effective to
the same extent as a decision made by the declarant if the declarant
were not incapacitated. However, if:
(1) a health care representative makes and communicates a health
care decision; and
(2) a health care provider concludes that carrying out that health
care decision would be medically inappropriate or clearly contrary
to the declarant's best interests;
then the health care provider has the same right to refuse to carry out
that decision as if that decision were made and communicated directly
by the declarant at a time when the declarant was not incapacitated.
(d) If a declarant's capacity to make health care decisions or provide
informed consent is in question, the declarant's treating physician shall
evaluate the declarant's capacity and, if the treating physician
concludes that the declarant lacks capacity, enter that evaluation in the
declarant's medical record.
(e) If the treating physician is unable to reach a conclusion under
subsection (d) about whether the declarant lacks capacity, the treating
physician and other health care providers shall treat the declarant as
still having capacity to make health care decisions and provide
informed consent, until a later evaluation occurs under this section after
the passage of time or after a change in the declarant's condition.
(f) This chapter does not limit the authority of a probate court under
IC 29-3 to make determinations about an individual's incapacity or
recovery from a period of incapacity.
(g) A determination made under this section that a declarant lacks
capacity to make health care decisions may not be construed as a
finding that a declarant lacks capacity for any other purpose.

Legislative History

As added by P.L.50-2021, SEC.63.