26:2H-106 Validity of advance directive for mental health care, reaffirmation, modification, revocation.

5. a. (1) An advance directive for mental health care shall be deemed to be valid for an indefinite period of time if it does not include an expiration date, subject to a declarant's right to modify, revoke, or suspend the advance directive in accordance with the provisions of this section.

(2) If an advance directive includes an expiration date that occurs during a period of time in which the declarant has been determined by the responsible mental health care professional to lack the capacity to make a particular mental health care decision, the advance directive shall remain in effect until the declarant is determined by the responsible mental health care professional to have regained the capacity to make a particular mental health care decision.

b. A declarant may state in an advance directive for mental health care, including a proxy directive or an instruction directive, or both, whether the declarant wishes to be able to modify, revoke or suspend the advance directive after it has become operative pursuant to section 7 of P.L.2005, c.233 (C.26:2H-108); however, the failure to include such a statement in the advance directive shall not be construed to prevent the declarant from modifying, revoking or suspending the advance directive under the circumstances described in this subsection.

c. A declarant may reaffirm or modify an advance directive for mental health care, including a proxy directive or an instruction directive, or both, subject to the provisions of subsection b. of this section. The reaffirmation or modification shall be made in accordance with the requirements for execution of an advance directive for mental health care pursuant to section 4 of P.L.2005, c.233 (C.26:2H-105).

d. A declarant may revoke an advance directive for mental health care, including a proxy directive or an instruction directive, or both, subject to the provisions of subsection b. of this section, by the following means:

(1) notification, orally or in writing, to the mental health care representative or mental health care professional, or other reliable witness, or by any other act evidencing an intent to revoke the document; or

(2) execution of a subsequent proxy directive or instruction directive, or both, in accordance with section 4 of P.L.2005, c.233 (C.26:2H-105).

e. Designation of the declarant's spouse as mental health care representative shall be revoked upon divorce or legal separation, and designation of the declarant's domestic partner as mental health care representative shall be revoked upon termination of the declarant's domestic partnership or designation of the declarant's civil union partner as mental health care representative shall be revoked upon termination of the declarant's civil union, unless otherwise specified in the advance directive.

f. An inpatient in a psychiatric facility may modify, revoke, or suspend an advance directive for mental health care, including a proxy directive or an instruction directive, or both, by any of the means stated in paragraph (1) of subsection d. of this section, unless a responsible mental health professional determines, in accordance with the provisions of section 8 of P.L.2005, c.233 (C.26:2H-109), that the patient lacks decision-making capacity to make the decision to modify, revoke, or suspend the advance directive. A patient who has modified, revoked, or suspended an advance directive may reinstate that advance directive by oral or written notification to the mental health care representative or mental health care professional of an intent to reinstate the advance directive.

g. Reaffirmation, modification, or revocation of an advance directive for mental health care is effective upon communication to any person capable of transmitting the information, including the mental health care representative or mental health care professional responsible for the patient's care.

L.2005, c.233, s.5; amended 2013, c.103, s.70.