Determination of Lack of Capacity to Make Health Care Decisions for the Purpose of Empowering Agent – N.Y. Pub. Health Law § 2983

An attending physician that determines, “to a reasonable degree of medical certainty”, that a principle lacks the capacity to make health care decisions must document their determination in writing and place a copy of the determination in the principle’s medical record. A physician must consult with another physician if the decision involves the withdrawal or withholding of life sustaining treatment and both physicians’ determinations must be placed in the patient’s medical record. 

A physician must be a psychiatrist or consult with a psychiatrist when determining that a patient lacks capacity due to a mental illness. A record regarding such consultation must be placed in the patient’s medical record.