Legal incapacity is an important term in New York elder law estate planning. An crucial part of the process is ensuring that another is able to handle legal, financial, and medical affairs in case one is unable to do so on their own. “Incapacity” is the term used to delineate when that alternative decision-making kicks in, giving an agent the power to act on another’s behalf. There is not necessarily a bright-line rule when it comes to identifying incapacity on a case-by-case basis. Therefore, many local residents might wonder how incapacity is defined in the law.
The New York Department of Health is a good starting point, as the agency website provides an overview of how incapacity is determined in our state for medical decision-making purposes. The resource explains that for health care purposes capacity to make medical decisions is “the ability to understand and appreciate the nature and consequences of health care decisions, including benefits and risks of and alternatives to any proposed health care and to reach an informed decision.” When a patient lacks capacity, then an identified agent (often via a New York Health Care Proxy) is able to act on the patient’s behalf. An elder law attorney can help create the Health Care Proxy so that the desired agent is able to make decisions in the event of disability.
In many cases, the incapacity determination is obvious–like when a patient is unconscious following a major adverse medical event. However, there may be other situations where there is genuine disagreement about whether or not a patient meets the incapacity definition.
In many cases the patient’s physician makes the determination. The doctor will find “to a reasonable degree” whether the patient is incapacitated–usually documenting this finding in medical records. The patient must always be informed of this determination if it is possible for them to understand the information. If the patient disagrees with the incapacity determination then a court-order must be obtained before an agent is given decision-making authority.
The rules are slightly different when the incapacity is due to mental illness or developmental disability. In those cases an attending physician is usually required to be certified by the American Board of Psychiatry and Neurology or consult with another physician who is properly certified. Importantly, “mental illnesses” that require this expert review does not include mental cognition problems that often affect seniors, like Alzheimer’s disease.
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