within the preceding 12-month period or has a validly executed

127.736 within the preceding 12-month period or has a validly executed declaration.

����� (3) The requirements of this section are in addition to any requirements that may be imposed under federal law and shall be interpreted in a manner consistent with federal law. Nothing in this section requires any health care or mental health care organization, or any employee or agent of an organization, to act in a manner inconsistent with federal law or contrary to individual religious or philosophical beliefs.

����� (4) No health care or mental health care organization shall be subject to criminal prosecution or civil liability for failure to comply with this section.

����� (5) For purposes of this section, �health care or mental health care organization� means a health care organization as defined in ORS 127.646 or a community mental health program or facility that provides mental health services. [1997 c.563 �5]

����� 127.705 Designation of attorney-in-fact for decisions about mental health treatment. A declaration may designate a competent adult to act as attorney-in-fact to make decisions about mental health treatment. An alternative attorney-in-fact may also be designated to act as attorney-in-fact if the original designee is unable or unwilling to act at any time. An attorney-in-fact who has accepted the appointment in writing may make decisions about mental health treatment on behalf of the principal only when the principal is incapable. The decisions must be consistent with any desires the principal has expressed in the declaration. [1993 c.442 �3]

����� 127.707 Execution of declaration; witnesses. (1) A declaration is effective only if it is signed by the principal and:

����� (a) Signed by two competent adult witnesses; or

����� (b) Notarized by a notary public.

����� (2) If a declaration is validated under subsection (1)(a) of this section, each witness must:

����� (a) Witness the principal signing the declaration or acknowledging the signature of the principal on the declaration.

����� (b) Attest that the principal:

����� (A) Is known to the witness;

����� (B) Signed or acknowledged the declaration in the presence of the witness; and

����� (C) Appeared to be of sound mind and not under duress, fraud or undue influence.

����� (3) None of the following may serve as a witness to the signing or acknowledgment of a declaration:

����� (a) The principal�s attending physician, provider or health care provider or a relative of the principal�s attending physician, provider or health care provider;

����� (b) An owner, operator or relative of an owner or operator of a health care facility in which the principal is a patient or resident;

����� (c) A person related to the principal by blood, marriage or adoption; or

����� (d) A person appointed as attorney-in-fact or alternative attorney-in-fact by the declaration. [1993 c.442 �4; 2023 c.11 �3]

����� 127.710 Operation of declaration; physician or provider to act in accordance with declaration. A declaration becomes operative when it is delivered to the principal�s physician or other provider and remains valid until revoked or expired. The physician or provider shall act in accordance with an operative declaration when the principal has been found to be incapable. The physician or provider shall continue to obtain the principal�s informed consent to all mental health treatment decisions if the principal is capable of providing informed consent or refusal. [1993 c.442 �5; 2014 c.45 �17]

����� 127.711 Determination of incapacity; petition for judicial determination of incapacity. (1) A person is incapable for purposes of ORS 127.700 to 127.737 if:

����� (a) The person�s ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that the person currently lacks capacity to make mental health treatment decisions, taking into consideration such factors as those described in subsection (2) of this section; and

����� (b)(A) The court in a proceeding under this section has determined that the person is incapable, as described under paragraph (a) of this subsection; or

����� (B) In the professional opinions of two individuals, each of whom must be either a licensed independent practitioner, as defined in ORS 426.005, or a licensed psychologist, the person is incapable as described in paragraph (a) of this subsection.

����� (2) Information relevant to a determination of incapacity under this section may include factors such as whether the person:

����� (a) Understands the courses of available mental health treatment, including the applicable risks and benefits of participating or not participating in the treatment;

����� (b) Understands the risks and benefits of alternative courses of treatment, if any, that are preferred by the person;

����� (c) Is able to identify nontreatment factors that may improve or worsen the person�s mental health;

����� (d) Is able to weigh and compare available treatment options based on information available to the person and the person�s personal preferences or values;

����� (e) Is able to effectively communicate the person�s preferred treatment outcome;

����� (f) Is able to identify rational reasons for the person�s preferred treatment outcome;

����� (g) Is able to learn and incorporate into the person�s decision-making new information relevant to available treatment options;

����� (h) Understands the impact of the person�s preferred outcome on important areas of the person�s life, including relationships, housing, ability to work or ability to exercise future civil rights; or

����� (i) Is able to identify behaviors the person needs to adopt to achieve the person�s preferred treatment outcome.

����� (3)(a) Any person, including the person whose capacity is being determined, who is interested in the affairs or welfare of a respondent may file a petition for a determination of capacity for purposes of a respondent�s declaration for mental health treatment in the circuit court of the county in which the respondent resides or is present.

����� (b) The petition must include a copy of the respondent�s declaration for mental health treatment and set forth:

����� (A) The name of the respondent;

����� (B) The names of the respondent�s parents, spouse, legal guardian, conservator or attorney-in-fact, if any;

����� (C) A statement of the facts describing the respondent�s alleged capacity or incapacity;

����� (D) A statement of facts indicating the likelihood that the respondent, without mental health treatment, will have the ability to make mental health treatment decisions in the foreseeable future;

����� (E) A statement of the reasons for which a determination of capacity is sought; and

����� (F) The name and statement of interest of the person initiating the petition or any person assisting the respondent with a self-initiated petition.

����� (c) The petitioner shall provide a copy of the petition to the respondent and the respondent�s attorney, if any.

����� (d) After providing the respondent with an opportunity to be heard in person or through counsel, the court, upon receiving a petition under paragraph (a) of this subsection or upon receiving notice from an investigator under ORS 426.074, shall enter a judgment determining by a preponderance of the evidence whether the respondent is incapable, as described in subsection (1)(a) of this section.

����� (e) At the request of the petitioner or the respondent or on the court�s own initiative, the court shall include written findings, by a preponderance of the evidence, regarding:

����� (A) Whether the respondent has executed a declaration for mental health treatment;

����� (B) Whether the respondent�s declaration was validly executed;

����� (C) Whether the declaration has been revoked or has expired; and

����� (D) What treatment is authorized or prohibited under the declaration.

����� (f) If the determination of capacity is made following notice from an investigator under ORS 426.074:

����� (A) The court shall enter the judgment under this section not later than one judicial day after receiving the notice;

����� (B) The court shall include the written findings described in paragraph (e) of this subsection in the judgment; and

����� (C) The court shall immediately provide the investigator with a copy of the judgment.

����� (4) A determination of incapacity under this section is applicable solely to the validity of the respondent�s declaration and the authority of the respondent�s attorney-in-fact, if any, under the declaration, to make mental health treatment decisions on the respondent�s behalf. [2025 c.559 �15]

����� 127.712 Scope of authority of attorney-in-fact; powers and duties; limitation on liability. (1) The attorney-in-fact does not have authority to make mental health treatment decisions unless the principal is incapable.

����� (2) The attorney-in-fact is not, as a result of acting in that capacity, personally liable for the cost of treatment provided to the principal.

����� (3) Except to the extent the right is limited by the declaration or any federal law, an attorney-in-fact has the same right as the principal to receive information regarding the proposed mental health treatment and to receive, review and consent to disclosure of medical records relating to that treatment. This right of access does not waive any evidentiary privilege.

����� (4) In exercising authority under the declaration, the attorney-in-fact has a duty to act consistently with the desires of the principal as expressed in the declaration. If the principal�s desires are not expressed in the declaration and not otherwise known by the attorney-in-fact, the attorney-in-fact has a duty to act in what the attorney-in-fact in good faith believes to be the best interests of the principal.

����� (5) An attorney-in-fact is not subject to criminal prosecution, civil liability or professional disciplinary action for any action taken in good faith pursuant to a declaration for mental health treatment. [1993 c.442 �6]

����� 127.715 Prohibitions against requiring person to execute or refrain from executing declaration. A person shall not be required to execute or to refrain from executing a declaration as a criterion for insurance, as a condition for receiving mental or physical health services or as a condition of discharge from a health care facility. [1993 c.442 �7]

����� 127.717 Declaration to be made part of medical record; physician or provider to comply with declaration; withdrawal of physician or provider. Upon being presented with a declaration, a physician or other provider shall make the declaration a part of the principal�s medical record. When acting under authority of a declaration, a physician or provider must comply with it to the fullest extent possible, consistent with reasonable medical practice, the availability of treatments requested and applicable law. If the physician or other provider is unable or unwilling at any time to carry out preferences or instructions contained in a declaration or the decisions of the attorney-in-fact, the physician or provider may withdraw from providing treatment if withdrawal is consistent with the exercise of independent medical judgment that is in the best interest of the principal. Upon withdrawing, a physician or provider shall promptly notify the principal and the attorney-in-fact and document the notification in the principal�s medical record. [1993 c.442 �8; 1999 c.83 �2]

����� 127.720 Circumstances in which physician or provider may disregard declaration. (1) The physician or provider may subject the principal to mental health treatment in a manner contrary to the principal�s wishes as expressed in a declaration for mental health treatment only:

����� (a) If the principal is committed pursuant to ORS 426.005 to 426.390 or 426.701 to the Oregon Health Authority and treatment is authorized in compliance with ORS