State Statutes Regarding Who Determines Capacity
| State | Statute |
|---|---|
| Alabama | “An advance directive for health care shall become effective when: (1) The attending physician determines that the declarant is no longer able to understand, appreciate, and direct his or her medical treatment; and (2) two physicians, one of whom shall be the attending physician, and one of whom shall be qualified and experienced in making such diagnosis, have personally examined the declarant and have diagnosed and documented in the medical record that the declarant has either a terminal illness or injury or is in a state of permanent unconsciousness.” Ala. Code § 22-98A-4 (2019) |
| Alaska | NONE |
| Arizona | NONE |
| Arkansas | “physician”; “If a designated physician who makes a determination or is informed of a determination that a principal lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent, guardian, or surrogate, the designated physician shall: (1) Record promptly the determination in the principal's current clinical record; and (2) Communicate the determination to the principal, if possible, and to any person authorized to make healthcare decisions for the principal.” Ark. Code Ann. §20-6-108 (2014) |
| California | “Unless otherwise specified in a written advance health care directive, for the purposes of this division, a determination that a patient lacks or has recovered capacity, or that another condition exists that affects an individual health care instruction or the authority of an agent or surrogate, shall be made by the primary physician.” Cal. Prob. Code § 4658 (2021) |
| Colorado | NONE. Defers to existing “medical ethics” and “protocol”; “It is the intent of the general assembly that nothing in this article shall have the effect of modifying or changing currently practiced medical ethics or protocol with respect to any patient…” CO Rev Stat 15-18-102 (2018) |
| Connecticut | NONE |
| Delaware | “Primary physician or other physician(s)”; “A determination that an individual lacks or has recovered capacity that affects an individual instruction or the authority of an agent must be made by the primary physician or other physician(s) as specified in a written health-care directive; however, a power of attorney for health care may include a provision accommodating an individual’s religious or moral beliefs. That provision may designate a person other than a physician to certify in a notarized document that the individual lacks or has recovered capacity” Del. Code Ann. tit. 16, § 2503 (2020) |
| District of Columbia | “Mental incapacity to make a health-care decision shall be certified by 2 professionals who are licensed to practice in the District and qualified to make a determination of mental incapacity. One of the 2 certifying professionals shall be a physician and one shall be a qualified psychologist or psychiatrist. At least 1 of the 2 certifying professionals shall examine the individual in question within 1 day preceding certification. Both certifying professionals shall give an opinion regarding the cause and nature of the mental incapacity as well as its extent and probable duration.” D.C. Code § 21–2204 (2020) |
| Florida | “Primary or attending physician”; provision for second opinion. “If a principal’s capacity to make health care decisions for herself or himself or provide informed consent is in question, the primary or attending physician shall evaluate the principal’s capacity and, if the evaluating physician concludes that the principal lacks capacity, enter that evaluation in the principal’s medical record. If the evaluating physician has a question as to whether the principal lacks capacity, another physician shall also evaluate the principal’s capacity, and if the second physician agrees that the principal lacks the capacity to make health care decisions or provide informed consent, the health care facility shall enter both physician’s evaluations in the principal’s medical record.” Fla. Stat. § 765.204 (2002) |
| Georgia | “Licensed physician”; “For purposes of this Code section, the term ’inability of any adult to consent for himself or herself’ means a determination in the medical record by a licensed physician after the physician has personally examined the adult that the adult ’lacks sufficient understanding or capacity to make significant responsible decisions’ regarding his or her medical treatment or the ability to communicate by any means such decisions.” Ga. Code Ann. § 31-9-2 (2020) |
| Hawaii | “Primary physician”; “A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.” Haw. Rev. Stat. §327E-5 (2022) |
| Idaho | NONE |
| Illinois | Attending physician; “Decisional capacity” means “the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or forgoing life-sustaining treatment and the ability to reach and communicate an informed decision in the matter as determined by the attending physician.” 755 Ill. Comp. Stat. 40 (1998) |
| Indiana | Treating physician or probate court.; “If a declarant's capacity to make health care decisions or provide informed consent is in question, the declarant's treating physician shall evaluate the declarant's capacity and, if the treating physician concludes that the declarant lacks capacity, enter that evaluation in the declarant's medical record. (e) If the treating physician is unable to reach a conclusion under subsection (d) about whether the declarant lacks capacity, the treating physician and other health care providers shall treat the declarant as still having capacity to make health care decisions and provide informed consent, until a later evaluation occurs under this section after the passage of time or after a change in the declarant's condition. (f) This chapter does not limit the authority of a probate court under IC 29-3 to make determinations about an individual's incapacity or recovery from a period of incapacity” Ind. Code § 16-36-7-35 (2023) |
| Iowa | NONE |
| Kansas | NONE |
| Kentucky | Law states that “the surrogate may not make a health care decision in any situation in which the grantor's attending physician has determined in good faith that the grantor has decisional capacity,” which appears to suggest that the authority lies with the attending physician. Ky. Rev. Stat. Ann. § 311.629 (2023) |
| Louisiana | NONE |
| Maine | Individual's primary physician or by a court; “An individual is presumed to have capacity to make a health care decision, to give or revoke an advance health care directive and to designate or disqualify a surrogate. This presumption may be rebutted by a determination by the individual's primary physician or by a court of competent jurisdiction.” Me. Rev. Stat. tit. 18, § 5-812 (2020) |
| Maryland | Generally two physicians; one physician if patient cannot communicate or is not conscious; “Unless otherwise provided in the document, an advance directive shall become effective when the declarant’s attending physician and a second physician certify in writing that the patient is incapable of making an informed decision. (2) If a patient is unconscious, or unable to communicate by any means, the certification of a second physician is not required … .” Md. Code Ann. Health-Gen. § 5-602 (2010) |
| Massachusetts | Attending physician; in cases of mental illness or developmental disability, must consult expert or have expertise; “The authority of a health care agent shall begin after a determination is made, pursuant to the provisions of this section, that the principal lacks the capacity to make or to communicate health care decisions. Such determination shall be made by the attending physician according to accepted standards of medical judgment. The determination shall be in writing and shall contain the attending physician's opinion regarding the cause and nature of the principal's incapacity as well as its extent and probable duration. This written determination shall be entered into the principal's permanent medical record. If the attending physician determines that a patient lacks capacity because of mental illness or developmental disability, the attending physician who makes the determination must have, or must consult with a health care professional who has, specialized training or experience in diagnosing or treating mental illness or developmental disabilities of the same or similar nature in making such determination.” Mass. Gen. Laws ch. II, § 201D:6 (2022) |
| Michigan | NONE |
| Minnesota | Attending physician, advanced practice registered nurse, or physician assistant; “The health care agent has authority to make any particular health care decision only if the principal lacks decision-making capacity, in the determination of the attending physician, advanced practice registered nurse, or physician assistant, to make or communicate that health care decision; or if other conditions for effectiveness otherwise specified by the principal have been met. The physician, advanced practice registered nurse, physician assistant, or other health care provider shall continue to obtain the principal's informed consent to all health care decisions for which the principal has decision-making capacity, unless other conditions for effectiveness otherwise specified by the principal have been met.” Minn. Stat. § 145C.07 (2022) |
| Mississippi | “primary physician”; “Unless otherwise specified in a written advance health-care directive, a determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, must be made by the primary physician.” Miss. Code Ann.§ 41-41-205 (2018) |
| Missouri | “certification by two licensed physicians”; “Unless the patient expressly authorizes otherwise in the power of attorney, the powers and duties of the attorney in fact to make health care decisions shall commence upon a certification by two licensed physicians based upon an examination of the patient that the patient is incapacitated and will continue to be incapacitated for the period of time during which treatment decisions will be required and the powers and duties shall cease upon certification that the patient is no longer incapacitated. One of the certifying physicians may be the patient's attending physician. The certification shall be made according to accepted medical standards. The determination of incapacity shall be periodically reviewed by the attending physician.” Mo. Rev. Stat. § 404.825 (1991) |
| Montana | Attending health care provider (including “physician, advanced practice registered nurse, or physician assistant”) using evidence-based methodologies and consulting specialists in certain cases; “An attending health care provider may determine that an adult patient lacks decisional capacity related to medical treatment. The determination must be documented in the patient's medical record. (2) (a) The attending health care provider shall make specific findings related to the cause, nature, and projected duration of the patient's lack of decisional capacity. The findings must be included in the patient's medical record. (b) Health care providers must use evidence-based methodologies for determining decision-making capacity. The method used to determine decision-making capacity may be selected in collaboration with a medical ethics committee. (c) Patients with chronic cognitive disabilities may require assessment by health care providers familiar with the patient's specific disability. If available, health care providers familiar with the patient's chronic cognitive disability must be consulted to assess decision-making capacity” Mont. Code Ann. § 50-5-1302 (2019) |
| Nebraska | For surrogate decision-making: primary health care provider; “A surrogate may make a health care decision for an individual if the individual has been determined to be incapable by the primary health care provider and no agent or guardian has been appointed for the individual. A determination that an individual is incapable of making a health care decision shall not be construed as a finding that the individual is incapable for any other purpose.” Neb. Rev. Stat. 30-604 (2018). For healthcare power of attorney to take effect: in writing by the attending physician and any physician consulted with respect to the determination; “A determination that a principal is incapable of making health care decisions shall be made in writing by the attending physician and any physician consulted with respect to the determination that the principal is incapable of making health care decisions, and they shall document the cause and nature of the principal's incapacity. The determination shall be included in the principal's medical record with the attending physician and, when applicable, with the consulting physician and the health care facility in or of which the principal is a patient or resides.” Neb. Rev. Stat. § 30-3412 (1993) |
| Nevada | NONE |
| New Hampshire | Physician, PA or advanced practice registered nurse in writing; “’Qualified patient’ means a patient who has executed an advance directive in accordance with this chapter and who has been certified in writing by the attending physician, PA, or APRN to lack the capacity to make health care decisions” N.H. Rev. Stat. Ann. § 137-J:5 (2016) |
| New Jersey | Attending physician, although a second opinion is required under certain circumstances; “The attending physician shall determine whether the patient lacks capacity to make a particular health care decision. The determination shall be stated in writing, shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity, and shall be made a part of the patient's medical records. b. The attending physician's determination of a lack of decision making capacity shall be confirmed by one or more physicians. The opinion of the confirming physician shall be stated in writing and made a part of the patient's medical records in the same manner as that of the attending physician. Confirmation of a lack of decision making capacity is not required when the patient's lack of decision making capacity is clearly apparent, and the attending physician and the health care representative agree that confirmation is unnecessary. c. If the attending physician or the confirming physician determines that a patient lacks decision making capacity because of a mental or psychological impairment or a developmental disability, and neither the attending physician or the confirming physician has specialized training or experience in diagnosing mental or psychological conditions or developmental disabilities of the same or similar nature, a determination of a lack of decision making capacity shall be confirmed by one or more physicians with appropriate specialized training or experience. The opinion of the confirming physician shall be stated in writing and made a part of the patient's medical records in the same manner as that of the attending physician” N.J. Stat. Ann. § 26:2H-60 (2014) |
| New Mexico | Two physicians. One must have additional expertise in cases of mental illness or developmental disability; “Unless otherwise specified in a written advance health-care directive, a determination that an individual lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent shall be made by two qualified health-care professionals, one of whom shall be the primary care practitioner. If the lack of capacity is determined to exist because of mental illness or developmental disability, one of the qualified health-care professionals shall be a person whose training and expertise aid in the assessment of functional impairment.” N.M. Stat. Ann. § 24-7A-11 (2006) |
| New York | Initial determination: attending physician; if patient has a “developmental disability,” assessment must be confirmed by additional expert.(90) Under New York’s Family Health Care Decisions Act of 2010 (FHCDA), the state’s surrogate decision-making statute, if incapacity results from mental illness, must be a psychiatrist or neurologist. N.Y. Pub. Health Law § 2994-c(3)(c)(i) (2021) |
| North Carolina | Physician or, in cases of mental health patients, a psychologist; “A health care power of attorney shall become effective when and if the physician or physicians or, in the case of mental health treatment, physician or eligible psychologist as defined in G.S. 122C-3(13d), designated by the principal determine in writing that the principal lacks sufficient understanding or capacity to make or communicate decisions relating to the health care of the principal, and shall continue in effect during the incapacity of the principal. The determination shall be made by the principal's attending physician or eligible psychologist if the physician or physicians or eligible psychologist designated by the principal is unavailable or is otherwise unable or unwilling to make this determination or if the principal failed to designate a physician or physicians or eligible psychologist to make this determination. A health care power of attorney may include a provision that, if the principal does not designate a physician for reasons based on his religious or moral beliefs as specified in the health care power of attorney, a person designated by the principal in the health care power of attorney may certify in writing, acknowledged before a notary public, that the principal lacks sufficient understanding or capacity to make or communicate decisions relating to his health care.” N.C. Gen. Stat. § 32A-20 (2011) |
| North Dakota | Attending physician.; “A health care directive, including the agent's authority, is in effect only when the principal lacks capacity to make health care decisions, as certified in writing by the principal's attending physician and filed in the principal's medical record, and ceases to be effective upon a determination that the principal has recovered capacity.” N.D. Cent. Code § 23-06.5-03 (2020) |
| Ohio | Only applies in cases: where durable power of attorney comes into effect, which requires “that the principal has lost the capacity to make informed health care decisions for the principal and that there is no reasonable possibility that the principal will regain the capacity” Ohio Revised Code Section 1337.16 (1998); or regarding capacity determination for withdrawal of life-sustaining treatment, where the “attending physician” is required. Ohio Rev. Code Ann. § 2133.03 (1998) |
| Oklahoma | Two physicians; “If my attending physician and another physician determine that I am no longer able to make decisions regarding my medical treatment…” Okla. Stat. tit. 63, § 3101.4 (2016) |
| Oregon | Attending physician or court; “Incapable” means that “in the opinion of the court in a proceeding to appoint or confirm authority of a health care representative, or in the opinion of the principal’s attending physician or attending health care provider, a principal lacks the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the principal’s manner of communicating if those persons are available.” Or. Rev. Stat. § 127.505 (2011) |
| Pennsylvania | Health care provider; “A condition in which an individual, when provided appropriate medical information, communication supports and technical assistance, is documented by a health care provider to do all of the following….”; however, a healthcare power of attorney does not appear to take effect until a determination by the attending physician: “the attending physician determines that the principal is incompetent.” 20 Pa. Cons. Stat. § 5422 (2019) |
| Rhode Island | NONE |
| South Carolina | Nonemergencies: Two physicians. Emergencies: Any medical provider; “A patient's inability to consent must be certified by two licensed physicians, each of whom has examined the patient. However, in an emergency the patient's inability to consent may be certified by a health care professional responsible for the care of the patient if the health care professional states in writing in the patient's record that the delay occasioned by obtaining certification from two licensed physicians would be detrimental to the patient's health. A certifying physician or other health care professional shall give an opinion regarding the cause and nature of the inability to consent, its extent, and its probable duration.” S.C. Code Ann. § 44-66-10 (2016) |
| South Dakota | Attending physician; “A health care decision by another is authorized under this chapter for an adult person who is incapable of giving informed consent to health care. A person is incapable of giving informed consent to health care if…(4) It has been so determined in good faith by his attending physician, acting either alone or in consultation with another physician. A determination by the attending physician that a person is incapable of giving informed consent is effective until there is a subsequent determination, either by the attending physician, or by the circuit court, that the person is either capable of giving informed consent or that the diagnosis upon which the determination of incapacity was based is no longer valid. The attending physician may decline to make a determination as to either a person's capacity or incapacity to give informed consent and a health care provider may, but need not, rely on any such determination. Any determination by an attending physician shall be in writing, shall be signed by the attending physician and shall be made a part of the person's medical record.” S.D. Codified Laws § 34-12C-2 (1990) |
| Tennessee | Physician: “A determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, must be made by the designated physician. In making such determination, a designated physician is authorized to consult with such other persons as the physician may deem appropriate.” Tenn. Code Ann. § 68-11-1803 (2004) |
| Texas | “If an adult patient… is comatose, incapacitated or otherwise… and according to reasonable medical judgment, is in need of medical treatment, the attending physician shall describe the [incapacity].” Tex. Health & Safety Code Ann. § 313.005 (2011) |
| Utah | Physician or physician’s assistant. “To overcome the presumption of capacity described in Subsection (1)(a), a physician, an APRN, or, subject to Subsection (6), a physician assistant who has personally examined the adult and assessed the adult's health care decision making capacity must: (a) find that the adult lacks health care decision making capacity” Utah Code Ann. § 75-2a-104 (2022) |
| Vermont | “the clinician who currently has responsibility for providing health care” to the patient; “An advance directive regarding health care shall become effective: (1) when a principal’s clinician: (A) determines, after speaking with an interested individual if one is reasonably available, that the principal lacks capacity, and makes specific findings regarding the cause, nature, and projected duration of the principal’s lack of capacity” Vt. Stat. Ann. tit. 18, § 9706 (2021) |
| Virginia | “attending physician…in writing upon personal examination of the patient that the patient is incapable of making an informed decision regarding health care and shall obtain written certification from a capacity reviewer that, based upon a personal examination of the patient, the patient is incapable of making an informed decision.” A “Capacity reviewer” is defined as a “licensed physician or clinical psychologist who is qualified by training or experience to assess whether a person is capable or incapable of making an informed decision” and, except in certain circumstances, is not otherwise involved in care of the patient. Va. Code Ann. § 54.1-2982 (2006) |
| Washington | Health care provider; “For purposes of this section, a person who is of the age of consent to make a particular health care decision is presumed to have capacity, unless a health care provider reasonably determines the person lacks capacity to make the health care decision.” Wash. Rev. Code § 7.70.065 (2019) |
| West Virginia | Attending physician, a physician, a physician’s assistant, an advanced practice registered nurse or a qualified psychologist; “A determination that a person is incapacitated shall be made by the attending physician, a physician, a qualified psychologist, a physician’s assistant, or an advanced practice registered nurse who has personally examined the person.” W. Va. Code § 16-30-7 (2020) |
| Wisconsin | Two physicians or a physician and a psychologist, nurse practitioner, or physician assistant; “…‘incapacity’ exists if 2 physicians or a physician and a psychologist, nurse practitioner, or physician assistant who have personally examined me sign a statement that specifically expresses their opinion that I have a condition that means that I am unable to receive and evaluate information effectively or to communicate decisions to such an extent that I lack the capacity to manage my health care decisions. A copy of that statement must be attached to this document.” Wis. Stat. Ann. § 155.30 (2020) |
| Wyoming | Primary physician with treating physician as backup; “Unless otherwise specified in a written advance health care directive, a determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, shall be made by the primary physician, but the treating primary health care provider may make the decision if the primary physician is unavailable.” Wyo. Stat. Ann. § 35-22-403 (2023) |