Section 2963. Determination of capacity to make a decision regarding cardiopulmonary resuscitation

1. Every adult shall be presumed to  have
  the  capacity to make a decision regarding cardiopulmonary resuscitation
  unless determined otherwise pursuant to this section or  pursuant  to  a
  court order. A lack of capacity shall not be presumed from the fact that
  a  committee  of  the property or conservator has been appointed for the
  adult pursuant to article seventy-seven or seventy-eight of  the  mental
  hygiene  law,  or that a guardian has been appointed pursuant to article
  seventeen-A of the surrogate's court procedure act.
    2. A determination that an adult patient lacks capacity shall be  made
  by  the attending physician to a reasonable degree of medical certainty.
  The determination shall be  made  in  writing  and  shall  contain  such
  attending  physician's  opinion  regarding  the  cause and nature of the
  patient's incapacity as well as its extent and  probable  duration.  The
  determination shall be included in the patient's medical chart.
    3.  (a)  At least one other physician, selected by a person authorized
  by the hospital to make such selection, must concur in the determination
  that an adult lacks capacity.   The concurring  determination  shall  be
  made  in  writing  after  personal  examination of the patient and shall
  contain the physician's opinion regarding the cause and  nature  of  the
  patient's  incapacity  as well as its extent and probable duration. Each
  concurring determination shall be  included  in  the  patient's  medical
  chart.
    (b)  If  the  attending  physician  of a patient in a general hospital
  determines that a patient lacks capacity because of mental illness,  the
  concurring  determination  required by paragraph (a) of this subdivision
  shall be provided by a physician licensed to practice  medicine  in  New
  York  state,  who  is  a  diplomate  or  eligible to be certified by the
  American Board of Psychiatry and Neurology or who is  certified  by  the
  American Osteopathic Board of Neurology and Psychiatry or is eligible to
  be certified by that board.
    (c)  If  the  attending  physician  determines  that  a  patient lacks
  capacity  because  of  a  developmental   disability,   the   concurring
  determination  required  by  paragraph  (a) of this subdivision shall be
  provided by a physician or psychologist employed by a  school  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  of  mental  retardation and developmental
  disabilities, or who has been approved by  the  commissioner  of  mental
  retardation   and   developmental   disabilities   in   accordance  with
  regulations promulgated by such commissioner.   Such  regulations  shall
  require that a physician or psychologist possess specialized training or
  three years experience in treating developmental disabilities.
    4.  Notice  of  a  determination that the patient lacks capacity shall
  promptly be given (a) to the patient, where there is any  indication  of
  the patient's ability to comprehend such notice, together with a copy of
  a  statement  prepared  in  accordance  with section twenty-nine hundred
  seventy-eight of this article, (b) to the person on the  surrogate  list
  highest in order of priority listed, when persons in prior subparagraphs
  are  not  reasonably  available,  and  (c)  if  the  patient is in or is
  transferred from a mental hygiene facility, to  the  facility  director.
  Nothing  in  this  subdivision  shall preclude or require notice to more
  than one person on the surrogate list.
    5. A determination that a patient lacks capacity to  make  a  decision
  regarding an order not to resuscitate pursuant to this section shall not
  be  construed as a finding that the patient lacks capacity for any other
  purpose.