Effective 1/1/2026
75A-9-103 Presumption of capacity -- Overcoming presumption.
(1)An individual is presumed to have capacity to make or revoke a health care decision, health care instruction, and power of attorney for health care unless:
(a)a court has found the individual lacks capacity to do so; or
(b)the presumption is rebutted under Subsection (2).
(2)Subject to Sections 75A-9-104 and 75A-9-105, a presumption under Subsection (1) may be rebutted by a finding that the individual lacks capacity:
(a)subject to Subsection (3), made on the basis of a contemporaneous examination by any of the following:
(i)a physician;
(ii)a psychologist licensed or otherwise authorized to practice in this state;
(iii)an individual with training and expertise in the finding of lack of capacity who is licensed or otherwise authorized to practice in this state as:
(A)a physician assistant; or
(B)an advanced practice registered nurse; or
(iv)a responsible health care professional not described in Subsections (2)(a)(i) through (iii) if:
(A)the individual about whom the finding is to be made is experiencing a health condition requiring a decision regarding health care treatment to be made promptly to avoid loss of life or serious harm to the health of the individual; and
(B)an individual described in Subsections (2)(a)(i) through (iii) is not reasonably available;
(b)made in accordance with accepted standards of the profession and the scope of practice of the individual making the finding and to a reasonable degree of certainty; and
(c)documented in a record signed by the individual making the finding that includes an opinion of the cause, nature, extent, and probable duration of the lack of capacity.
(3)The finding under Subsection (2) may not be made by:
(a)a family member of the individual presumed to have capacity;
(b)the cohabitant of the individual or a descendant of the cohabitant; or
(c)the individual’s surrogate, a family member of the surrogate, or a descendant of the surrogate.
(4)If the finding under Subsection (2) was based on a condition the individual no longer has or a responsible health care professional subsequently has good cause to believe the individual has capacity, the individual is presumed to have capacity unless a court finds the individual lacks capacity or the presumption is rebutted under Subsection (2).

Enacted by Chapter 439, 2025 General Session