Capacity and Health Care Proxies

On August 22, 2012, in Estate planning, by John A. Weber IV, ESQ.

Capacity and Health Care Proxies

Most people know that a court may void a will if it believes that its creator was cognitively impaired when the will was written or signed. Essentially, if a court believes that a person could not have understood the will that the person signed, then the court will declare the will void. The same standard applies to powers of attorney. However, the legislature has adopted a different standard for Health Care Proxies. Section 2981(1)(b) of New York’s Public Health Law provides:

For the purposes of this section, every adult shall be presumed competent to appoint a health care agent unless such person has been adjudged incompetent or otherwise adjudged not competent to appoint a health care agent, or unless a committee or guardian of the person has been appointed for the adult pursuant to article seventy-eight of the mental hygiene law or article seventeen-A of the surrogate’s court procedure act.

This means that the competency determinations for health care proxies is different than for wills and powers of attorney. For example, imagine that a person signs a health care proxy, power of attorney, and will on the same day. Because the rules for determining competency are different, it is possible that a court will decide that the person had capacity to sign the health care proxy, while lacking capacity to sign the power of attorney and will, even though the three were signed on the same day. Under this law, a health care proxy’s challenger bears the burden of proving incompetence. In the absence of evidence showing incompetency, no evidence of competency need be offered.

Of course, this does not mean that every health care proxy is valid. The presumption established by law can be overcome with the right evidence.

If you have any questions about this or other legal issues, call the Law Firm of Vaughn, Weber & Prakope, PLLC today at 516-858-2620 to schedule a free consultation.

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