§ 75A-9-104 — Notice of finding of lack of capacity -- Right to object.

(1) As soon as reasonably feasible, an individual who makes a finding under Subsection 75A-9-103(2) shall inform the individual about whom the finding was made or the individual's responsible health care professional of the finding.
(2) As soon as reasonably feasible, a responsible health care professional who is informed of a finding under Subsection 75A-9-103(2) shall inform the individual about whom the finding was made and the individual's surrogate.
(3) An individual found under Subsection 75A-9-103(2) to lack capacity may object to the finding:
(3)(a) by orally informing a responsible health care professional;
(3)(b) in a record provided to a responsible health care professional or the health care institution in which the individual resides or is receiving care; or
(3)(c) by another act that clearly indicates the individual's objection.
(4) If the individual objects under Subsection (3), the finding under Subsection 75A-9-103(2) is not sufficient to rebut a presumption of capacity in Subsection 75A-9-103(1) and the individual must be treated as having capacity unless:
(4)(a) the individual withdraws the objection;
(4)(b) a court finds the individual lacks the presumed capacity;
(4)(c) the individual is experiencing a health condition requiring a decision regarding health care treatment to be made promptly to avoid imminent loss of life or serious harm to the health of the individual; or
(4)(d) subject to Subsection (5), the finding is confirmed by a second finding made by an individual authorized under Subsection 75A-9-103(2)(a) who:
(4)(d)(i) did not make the first finding;
(4)(d)(ii) is not a family member of the individual who made the first finding; and
(4)(d)(iii) is not the cohabitant of the individual who made the first finding or a descendant of the cohabitant.
(5) A second finding that the individual lacks capacity under Subsection (4)(d) is not sufficient to rebut the presumption of capacity if the individual is requesting the provision or continuation of life-sustaining treatment and the finding is being used to make a decision to withhold or withdraw the treatment.
(6) As soon as reasonably feasible, a health care professional who is informed of an objection under Subsection (3) shall:
(6)(a) communicate the objection to a responsible health care professional; and
(6)(b) document the objection and the date of the objection in the individual's medical record or communicate the objection and the date of the objection to an administrator with responsibility for medical records of the health care institution providing health care to the individual, who shall document the objection and the date of the objection in the individual's medical record.

Legislative History

Enacted by Chapter 439, 2025 General Session