MT House Bill 518

Legislation

State: Montana
Signed: May 06, 2011

Effective: October 01, 2011
Chapter: 329

Summary

House Bill 518 creates an advance health care directive for persons suffering from mental illness and requires the directive to be notarized for it to become effective.

Affects

Adds as yet uncodified sections to, amends Section 72-5-402 of, and repeals Section 53-21-153 in the Montana Code Annotated.

Changes

Provides that a mental health care directive may be created by an adult with capacity, a minor 16 years of age with capacity or an emancipated minor with capacity.
Defines “capacity” as the ability of a person to understand the significant benefits and risks of and alternatives to proposed health care and to make and communicate a health care decision, and “incapacitated” as a determination by a supervising health care provider or court that a person lacks the ability to make health care decisions.
Requires a mental health care advance directive to be in writing, contain language that clearly indicates the person intends to create a directive, be dated and signed by the principal or at the principal’s direction and in the principal’s presence if the principal is unable to sign and be notarized.
States that a mental health care advance directive executed in accordance with the provisions of the act is presumed to be valid.
Provides that a mental health care directive takes effect upon a determination of incapacity.

Analysis

It is commonplace for persons to create an advance health care directive to appoint an agent to make general medical decisions in the event that an individual is unable to do so. It is less common for statute to allow individuals to create a directive in the event the individual suffers from a mental illness, but states increasingly are enacting legislation to allow for the creation of these important directives. Like many advance directives, a mental health care directive must be notarized. In notarizing a mental health care directive, a Notary should make a layperson’s assessment that the principal is competent or aware at the time of signing the directive, and especially if another individual signs the directive at the direction and in the presence of the principal, as the act allows.

Read House Bill 518.