## Facts

- Rose S. executed a health care proxy on June 22, 1999, naming Martin G.S. as her health care agent; the proxy was witnessed by two disinterested witnesses and was facially valid.
- During a June 19–24, 1999 hospitalization, Rose’s records documented confusion and disorientation.
- Rose was diagnosed with Alzheimer’s-type dementia on June 23, 1999.
- A treating physician testified that Rose was not competent to sign a health care proxy around that time.
- The hospital declined to honor the proxy based on its assessment of Rose’s confusion and disorientation.
- Martin sought enforcement of the proxy, relying mainly on his testimony that he explained the proxy and that Rose understood it.
- Martin testified Rose had suffered from dementia since 1989.
- There was no showing that the witnesses attempted to assess Rose’s competence at execution.
- Martin acknowledged he sought execution after hospital personnel told him Rose was incompetent.

## Issues

1. When medical evidence indicates the principal suffered from mental illness or defect at execution, does the burden shift to the proponent of a health care proxy to prove capacity by clear and convincing evidence?
2. If so, did Martin G.S. meet that burden as to Rose S.’s capacity on June 22, 1999?

## Decision

- The appellate court modified the order to declare the June 22, 1999 health care proxy invalid and otherwise affirmed.
- The court held that medical evidence of Rose’s mental illness or defect shifted the burden to Martin to prove capacity by clear and convincing evidence.
- The court found Martin’s proof, consisting primarily of his own testimony, insufficient to satisfy the clear-and-convincing standard given the contemporaneous medical evidence.

## Legal Principles

- For purposes of New York Public Health Law § 2981, adults are presumed competent to appoint a health care agent, and the party alleging incapacity ordinarily bears the burden of proof.
- When medical evidence shows mental illness or mental defect at or near execution, the burden shifts to the instrument’s proponent to prove capacity by clear and convincing evidence.
- A diagnosis such as Alzheimer’s disease does not create a presumption of total incompetence; capacity turns on the principal’s mental state at the time of execution.
- Treating-physician testimony and contemporaneous medical records of confusion and disorientation may constitute medical evidence sufficient to trigger burden shifting.

## Conclusion

Because contemporaneous medical records and physician testimony supported a finding that Rose suffered from a mental illness or defect when the proxy was executed, the burden shifted to Martin to prove by clear and convincing evidence that she had capacity; he failed to do so, and the proxy was declared invalid.


In re Rose S., 293 A.D.2d 619 (N.Y. App. Div. 2d Dep't 2002)