N.Y. Mental Hygiene Law § 82.03: Presumption of capacity

* § 82.03 Presumption of capacity.

(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.