(1) For the purposes of this chapter, a principal, agent, professional person, or health care provider may seek a determination whether the principal is incapacitated or has regained capacity.

     (2)(a) For the purposes of this chapter, no adult may be declared an incapacitated person except by:

     (i) A court, if the request is made by the principal or the principal's agent;

     (ii) One mental health professional and one health care provider; or

     (iii) Two health care providers.

     (b) One of the persons making the determination under (a)(ii) or (iii) of this subsection must be a psychiatrist, psychologist, or a psychiatric advanced registered nurse practitioner.

     (3) When a professional person or health care provider requests a capacity determination, he or she shall promptly inform the principal that:

     (a) A request for capacity determination has been made; and

     (b) The principal may request that the determination be made by a court.

     (4) At least one mental health professional or health care provider must personally examine the principal prior to making a capacity determination.

     (5)(a) When a court makes a determination whether a principal has capacity, the court shall, at a minimum, be informed by the testimony of one mental health professional familiar with the principal and shall, except for good cause, give the principal an opportunity to appear in court prior to the court making its determination.

     (b) To the extent that local court rules permit, any party or witness may testify telephonically.

     (6) When a court has made a determination regarding a principal's capacity and there is a subsequent change in the principal's condition, subsequent determinations whether the principal is incapacitated may be made in accordance with any of the provisions of subsection (2) of this section.

[2003 c 283 § 11.]