1. (1) A DMHT communicates a person’s preferred mental health treatments, services, and supports so that, in the event a court or two capacity evaluators determine the person is incapable to make informed mental health treatment decisions:

   1. (a) A provider is informed of the person’s wishes about treatment; or
   2. (b) A provider can consult with an attorney-in-fact, if appointed, concerning the person’s wishes about mental health treatment.
2. (2) An LIP at a hospital or nonhospital facility approved under OAR 309-033-0500 to OAR 309-033-0570 must review a person’s DMHT if a DMHT is in the person’s clinical record or if presented with a copy of a DMHT.

3. (3) An LIP must follow the instructions for care provided in a DMHT when a person is determined to be incapable to make mental health treatment decisions by two capacity evaluators or a court unless:

   1. (a) The person is under a civil commitment order pursuant to ORS 426.005 to 426.390, and 426.701;
   2. (b) The treating provider does not believe that the preferred treatments are sufficient and available;
   3. (c) The person is court committed to the Oregon State Hospital or a secure residential treatment facility pursuant to ORS 161.295, ORS 161.365, ORS 161.370, or ORS 419C.411;
   4. (d) State law and administrative rule authorizes intervention due to an emergency that risks the life or health of the person; or
   5. (e) As otherwise provided in ORS 127.720.

4. (4) When a CMHP director in a person’s county of residence receives a DMHT on behalf of the person, the CMHP director must: ensure that a copy:

   1. (a) Be entered into the person’s clinical record maintained by the CMHP;
   2. (b) If the person consents, submit a copy to submitted to, if the person chooses, the voluntary mental health database contained within the Law Enforcement Data System (LEDS) or its successor;
   3. (c) If provided, give a copy to local hospital and nonhospital facilities, including those the person has identified in their declaration, with instructions to retain it.

5. (5) If a LIP suspects that a person may be incapable to make informed mental health treatment decisions, the LIP must: ensure that an incapable determination is made by:

   1. (a) Petition The court to make a determination; or
   2. (b) With one other capacity evaluator, make the determination in accordance with Two capacity evaluators under Subsection 6 of this rule, where one may be the treating LIP.

6. (6) An incapable determination by two capacity evaluators must be documented by each capacity evaluator in the person’s medical record within 24 hours of the determination being made. An incapable or not incapable determination must consider, and the documentation must attest to, the person’s:

   1. (a) Knowledge of available mental health treatment options and their ability to understand the risks and benefits associated with each and in comparison, to each other;
   2. (b) Understanding of factors other than mental health treatment that may be harmful or beneficial to the person’s mental health, including behavioral factors;
   3. (c) Ability to communicate preferred outcomes related to treatment, and the person’s ability to consider new information and formulate new desired outcomes as appropriate; and
   4. (d) Understanding of preferred outcomes on the person’s ability to create and maintain positive relationships, find and maintain adequate housing, secure and maintain employment; or avoid episodes of involuntary treatment or criminal-legal involvement including incarceration.
7. (7) If an incapable determination cannot be made under Subsections 5 and Subsection 6 of this rule, a LIP or treating provider must request an incapable determination be made by the court by submitting a petition to the court in which the Notice of Mental Illness was filed.
8. (8) When a person has been determined to be incapable and treatment is then provided in accordance with the DMHT, a LIP or CMHP director must provide care and treatment to the person as a voluntary admission to care.

9. (9) If a person declines to participate in the plan of care described in the person’s DMHT following an incapable determination, made by two capacity evaluators, either directly or following the attorney-in-fact’s decision to implement the DMHT:

   1. (a) The LIP may petition the court for an incapable determination to be made; or
   2. (b) If the LIP believes the person is a danger to self or a danger to others, the LIP must assess the person and determine whether to detain the person under ORS 426.232.
10. (10) If a PAMI disagrees with the incapable determination made by two capacity evaluators and the PAMI does not wish for the instructions in the DMHT to be followed or for the attorney-in-fact to make decisions, the PAMI may independently petition the court in the county in which the Notice of Mental Illness was filed to make a determination.
11. (11) If a person is determined to be incapable to make mental health treatment decisions through this process, the determination is only applicable to the validity of the DMHT and may not be used as evidence in the course of civil commitment proceedings.

Statutory/Other Authority

ORS 413.042, 426.385 & HB 2005 (2025)

Statutes/Other Implemented

ORS 426.005 - 426.395

History

BHS 17-2026, adopt filed 06/26/2026, effective 06/26/2026
BHS 30-2025, temporary adopt filed 12/29/2025, effective 01/01/2026 through 06/29/2026