2023 District of Columbia Code › Title 21 - Fiduciary Relations and Persons with Mental Illness. [Enacted title] › Chapter 22 - Health-Care Decisions › Subchapter I - Durable Power of Attorney › § 21–2204. Certification of incapacity

§ 21–2204. Certification of incapacity.
(a) 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.
(b) All professional findings and opinions forming the basis of certification under subsection (a) of this section shall be expressed in writing, included in the patient-care records of the individual, and provide clear evidence that the person is incapable of understanding the health-care choice, making a decision concerning the particular treatment or services in question, or communicating a decision even if capable of making it.
(c) Certification of incapacity under this section shall be limited in its effect to the capacity to make health-care decisions and shall not be construed as a finding of incompetency for any other purpose.
(Mar. 16, 1989, D.C. Law 7-189, § 5, 35 DCR 8653; Feb. 5, 1994, D.C. Law 10-68, § 23(e), 40 DCR 6311; Oct. 22, 2008, D.C. Law 17-249, § 3(b), 55 DCR 9206.)
Prior Codifications
1981 Ed., § 21-2204.
Section References
This section is referenced in § 7-1203.03, § 7-1231.07, § 7-1231.08, § 7-1305.06a, § 7-1305.07a, § 21-2002, § 21-2041, § 21-2046, § 21-2047.02, § 21-2203, § 21-2210, and § 21-2212.
Effect of Amendments
D.C. Law 17-249 rewrote subsec. (a), which had read as follows: “(a) Mental incapacity to make a health-care decision shall be certified by 2 physicians who are licensed to practice in the District and qualified to make a determination of mental incapacity. One of the 2 certifying physicians shall be a psychiatrist. At least 1 of the 2 certifying physicians shall examine the individual in question within 1 day preceding certification. Both certifying physicians shall give an opinion regarding the cause and nature of the mental incapacity as well as its extent and probable duration.”
Cross References
Presumption of capacity, health care decisions, see § 21-2203.
Substituted consent, health care decisions, see § 21-2210.
Applicability
Section 7011 of D.C. Law 22-33 repealed § 4 of D.C. Law 21-72. Therefore the creation of this section by D.C. Law 21-72 has been implemented.
Applicability of D.C. Law 21-72: § 4 of D.C. Law 21-72 provided that the change made to this section by § 2 of D.C. Law 21-72 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been given effect.
Emergency Legislation
For temporary (90 days) repeal of § 4 of D.C. Law 21-72, see § 7011 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).
For temporary (90 days) repeal of § 4 of D.C. Law 21-72, see § 7011 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).
For temporary (90 day) amendment of section, see § 3(b) of Health-Care Decisions for Persons with Mental Retardation and Developmental Disabilities Emergency Amendment Act of 2005 (D.C. Act 16-190, October 28, 2005, 52 DCR 10021).
For temporary (90 day) amendment of section, see § 3(b) of Health-Care Decisions for Persons with Mental Retardation and Development Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-262, January 26, 2006, 53 DCR 795).
For temporary (90 day) amendment of section, see § 3(b) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) amendment of section, see § 3(b) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) amendment of section, see § 3(b) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17-161, October 18, 2007, 54 DCR 10932).
For temporary (90 day) amendment of section, see § 3(b) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) amendment, see § 3(b) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
Temporary Legislation
Section 3(b) of D.C. Law 16-46, in subsec. (a), substituted “professionals” for “physicians” wherever it appears and substituted “One of the 2 certifying professionals shall be a physician and one shall be a qualified psychologist or psychiatrist.” for “One of the 2 certifying physicians shall be a psychiatrist.”
Section 6(b) of D.C. Law 16-46 provided that the act shall expire after 225 days of its having taken effect.
Section 3(b) of D.C. Law 16-194, in subsec. (a), substituted “professionals” for “physicians” throughout, and substituted “One of the 2 certifying professionals shall be a physician and one shall be a qualified psychologist or psychiatrist.” for the second sentence.
Section 6(b) of D.C. Law 16-194 provided that the act shall expire after 225 days of its having taken effect.
Section 3(b) of D.C. Law 17-100, in subsec. (a), substituted “professionals” for “physicians” throughout and “One of the 2 certifying professionals shall be a physician and one shall be a qualified psychologist or psychiatrist.” for the second sentence.
Section 6(b) of D.C. Law 17-100 provided that the act shall expire after 225 days of its having taken effect.