2018 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 physician or attending nurse practitioner. (a) A determination
  that  a  principal lacks capacity to make health care decisions shall be
  made by the attending physician or attending  nurse  practitioner  to  a
  reasonable  degree of medical certainty. The determination shall be made
  in writing and shall contain such  attending  physician's  or  attending
  nurse  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  physician  or  attending  nurse  practitioner  who  makes the
  determination that a  principal  lacks  capacity  to  make  health  care
  decisions  must  consult with another physician or nurse practitioner to
  confirm such determination. Such consultation  shall  also  be  included
  within the patient's medical record.
(b)  If  an  attending  physician or attending nurse practitioner of a
  patient in a general hospital or mental hygiene facility determines that
  a patient lacks  capacity  because  of  mental  illness,  the  attending
  physician  or  attending  nurse 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  physician  or  attending  nurse  practitioner
  determines  that  a  patient  lacks  capacity because of a developmental
  disability, the attending physician or attending nurse practitioner  who
  makes  the  determination  must  be, or must consult, for the purpose of
  confirming the determination, with a physician,  nurse  practitioner  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 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 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  physician  or  attending  nurse  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  physician  or
  attending  nurse  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
  physician or attending nurse 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.