(1) A person is incapable for purposes of ORS 127.700 to 127.737 if: (a) The persons 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 persons mental health; (d) Is able to weigh and compare available treatment options based on information available to the person and the persons personal preferences or values; (e) Is able to effectively communicate the persons preferred treatment outcome; (f) Is able to identify rational reasons for the persons preferred treatment outcome; (g) Is able to learn and incorporate into the persons decision-making new information relevant to available treatment options; (h) Understands the impact of the persons preferred outcome on important areas of the persons 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 persons 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 respondents 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 respondents declaration for mental health treatment and set forth: (A) The name of the respondent; (B) The names of the respondents parents, spouse, legal guardian, conservator or attorney-in-fact, if any; (C) A statement of the facts describing the respondents 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 respondents 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 courts 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 respondents 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 respondents declaration and the authority of the respondents attorney-in-fact, if any, under the declaration, to make mental health treatment decisions on the respondents behalf.
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