2023 New York Laws › PBH - Public Health › Article 29-C - Health Care Agents and Proxies › 2983 - Determination of Lack of Capacity to Make Health Care Decisions for the Purpose of Empowering Agent.

§  2983.  Determination  of  lack  of  capacity  to  make  health care
decisions for the purpose of empowering  agent.    1.  Determination  by
attending  practitioner.  (a)  A  determination  that  a principal lacks
capacity to make health care decisions shall be made  by  the  attending
practitioner   to  a  reasonable  degree  of  medical  certainty.    The
determination shall be made in writing and shall contain such  attending
practitioner's opinion regarding the cause and nature of the principal's
incapacity   as   well   as   its  extent  and  probable  duration.  The
determination shall be included in the patient's medical record.  For  a
decision   to   withdraw  or  withhold  life-sustaining  treatment,  the
attending practitioner who makes  the  determination  that  a  principal
lacks  capacity  to make health care decisions must consult with another
physician, physician assistant, or nurse practitioner  to  confirm  such
determination.  Such  consultation  shall  also  be  included within the
patient's medical record.
(b) If an attending practitioner of a patient in a general hospital or
mental hygiene facility determines that a patient lacks capacity because
of  mental  illness,  the   attending   practitioner   who   makes   the
determination  must  be,  or must consult, for the purpose of confirming
the determination, with a  qualified  psychiatrist.  A  record  of  such
consultation shall be included in the patient's medical record.
(c)  If  the  attending  practitioner  determines that a patient lacks
capacity  because  of  a   developmental   disability,   the   attending
practitioner  who  makes the determination must be, or must consult, for
the purpose of confirming the determination,  with  a  physician,  nurse
practitioner,  physician  assistant, or clinical psychologist who either
is employed by a developmental disabilities  services  office  named  in
section  13.17 of the mental hygiene law, or who has been employed for a
minimum of two years to render care and service in a  facility  operated
or licensed by the office for people with developmental disabilities, or
has  been  approved by the commissioner of developmental disabilities in
accordance with  regulations  promulgated  by  such  commissioner.  Such
regulations   shall   require  that  a  physician,  nurse  practitioner,
physician  assistant,  or  clinical  psychologist  possess   specialized
training   or   three   years   experience   in  treating  developmental
disabilities. A record of such consultation shall  be  included  in  the
patient's medical record.
(d)  A  physician,  physician assistant, or nurse practitioner who has
been appointed as a patient's agent shall not make the determination  of
the patient's capacity to make health care decisions.
2.  Request  for  a  determination.  If  requested  by  the  agent, an
attending  practitioner  shall  make  a  determination   regarding   the
principal's  capacity  to make health care decisions for the purposes of
this article.
3. Notice of determination. Notice of a determination that a principal
lacks capacity to make health care decisions shall  promptly  be  given:
(a)  to  the  principal,  orally  and  in  writing,  where  there is any
indication of the principal's ability to comprehend such notice; (b)  to
the  agent;  (c)  if the principal is in or is transferred from a mental
hygiene facility, to the facility director; and (d) to  the  conservator
for, or committee of, the principal.
4.  Limited purpose of determination. A determination made pursuant to
this section that  a  principal  lacks  capacity  to  make  health  care
decisions  shall  not  be  construed as a finding that the patient lacks
capacity for any other purpose.
5. Priority of principal's decision. Notwithstanding  a  determination
pursuant  to  this  section  that  the  principal lacks capacity to make
health care decisions, where a principal objects to the determination of

incapacity  or  to  a  health  care  decision  made  by  an  agent,  the
principal's  objection or decision shall prevail unless the principal is
determined by a court of competent jurisdiction to lack capacity to make
health care decisions.
6.  Confirmation  of  lack of capacity. (a) The attending practitioner
shall confirm the principal's continued incapacity before complying with
an agent's health care decisions, other than those decisions made at  or
about the time of the initial determination made pursuant to subdivision
one  of  this  section.  The confirmation shall be stated in writing and
shall be included in the principal's medical record.
(b) The notice requirements set forth in  subdivision  three  of  this
section   shall   not   apply  to  the  confirmation  required  by  this
subdivision.
7. Effect  of  recovery  of  capacity.  In  the  event  the  attending
practitioner  determines  that  the principal has regained capacity, the
authority of  the  agent  shall  cease,  but  shall  recommence  if  the
principal  subsequently  loses  capacity  as determined pursuant to this
section.