§ 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.