Section 2983. Determination of lack of capacity to make health care decisions for the purpose of empowering agent

1.    Determination  by
  attending physician. (a) A determination that a principal lacks capacity
  to  make  health care decisions 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 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  who  makes   the
  determination  that  a  principal  lacks  capacity  to  make health care
  decisions  must  consult  with  another  physician   to   confirm   such
  determination.  Such  consultation  shall  also  be  included within the
  patient's medical record.
    (b) If an attending physician of a patient in a  general  hospital  or
  mental hygiene facility determines that a patient lacks capacity because
  of  mental  illness, the attending physician 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  determines  that  a  patient  lacks
  capacity  because of a developmental disability, the attending physician
  who makes the determination must be, or must consult, for the purpose of
  confirming the determination, with a physician or clinical  psychologist
  who  either is 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
  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 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 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 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  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.