N.Y. Mental Hygiene Law 82.03 – Presumption of capacity
* § 82.03 Presumption of capacity.
Terms Used In N.Y. Mental Hygiene Law 82.03
- adult: means an individual eighteen years of age or older. See N.Y. Mental Hygiene Law 82.02
- decision-maker: means an adult who has executed, or seeks to execute, a supported decision-making agreement. See N.Y. Mental Hygiene Law 82.02
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- supported decision-making: means a way by which a decision-maker utilizes support from trusted persons in their life, in order to make their own decisions about their life, including, but not limited to, decisions related to where and with whom the decision-maker wants to live; decisions about finances; the services, supports, and health care the decision-maker wants to receive; and where the decision-maker wants to work. See N.Y. Mental Hygiene Law 82.02
- supported decision-making agreement: is a n agreement a decision-maker enters into with one or more supporters under this section that describes how the decision-maker uses supported decision-making to make their own decisions. See N.Y. Mental Hygiene Law 82.02
(a) For the purposes of this article, every adult shall be presumed to have the capacity to enter into a supported decision-making agreement, unless that adult has a legal guardian, appointed by a court of competent jurisdiction, whose granted authority is in conflict with the proposed supported decision-making agreement. This presumption may be rebutted only by clear and convincing evidence.
(b) Capacity shall include capacity with decision-making support and/or accommodations.
(c) A diagnosis of a developmental or other disability or condition shall not constitute evidence of incapacity.
(d) The manner in which an adult communicates with others shall not constitute evidence of incapacity.
(e) Neither the execution of a supported decision-making agreement by an individual, nor the interest in or wish to execute a supported decision-making agreement by an individual, nor the failure of an individual to execute a supported decision-making agreement may be used or considered as evidence that the individual lacks capacity, or to deny the decision-maker benefits to which they are otherwise entitled, including adult protective services.
(f) A decision-maker may make and execute a supported decision-making agreement, if the decision-maker understands that they are making and executing an agreement with their chosen supporters and that they are doing so voluntarily.
* NB Effective 90 days from the date that the regulations issued in accordance with § 1 of chapter 481 of 2022 appear in the New York State Register or the date such regulations are adopted, whichever is later.