he or she is ion shall be aluatore ys follow Fall be are entified: Eys prices as as of property management, personal care skills, the problems associated with disabilities, and the private and public resources available for the type of limitations the person is alleged to have, including, but not limited to, an attorney-at-law, physician, psychologist, accountant, social worker, or nurse; 2. if the person alleged to be incapacitated resides in a facility, hospital, school, or an alcoholism facility as those terms defined in section 1,03 of this chapter, or a substance abuse program as that term is defined in section 19.03 of this chapter, an adult care facility that term is defined in section two of the social services law, a residential health care facility or a general hospital those terms are defined in section two thousand eight hundred one of the public health law, the mental hygiene legal service in the judicial department where the person resides may be appointed court evaluator; 3. if the court appoints the mental hygiene legal service as the evaluator and upon investigation in accordance with section 81.10 of this article it appears to the mental hygiene legal service that the mental hygiene legal service represents the person alleged to be incapacitated as counsel, or that counsel should otherwise be appointed in accordance with section 81.10 of this article for the person alleged to be incapacitated, the mental hygiene legal service shall so report to the court. The mental hygiene legal service shall be relieved of its appointment as court evaluator whenever the mental hygiene legal service represents as counsel, or is assigned to represent as counsel, the person alleged to be incapacitated. (c) The duties of the court evaluator shall include the following: 1. meet ing, interviewing, and consulting with the person alleged to be incapacitated regarding the proceeding. 2. explaining to the person alleged to be incapacitated, in a manner which the person can reasonably be expected to understand, the nature and possible consequences of the proceeding, the general powers and duties of a guardian, available resources, and the rights to which the person is entitled, including the right to counsel. 3. determining whether the person alleged to be incapacitated wishes legal counsel to be appointed and otherwise otherwise evaluating whether legal counsel should be appointed in accordance with section 81.10 of this article. 4. interviewing the petitioner, or, if the petitioner is a facility or government agency, a person within the facility or agency fully familiar with the person's condition, affairs and situation. 5. investigating and making a written report and recommendations to the court; the report and recommendations shall include the court evaluator's personal observations as to the person alleged to be incapacitated and his or her condition, affairs and situation, well information in response to the following questions: (1) does the person alleged to be incapacitated agree to the appointment of the proposed guardian and to the powers proposed for the guardian; (ii) does the person wish legal counsel to be appointed or is the appointment of counsel in accordance with section 81.10 of this article otherwise appropriate; (iii) can the person alleged to be incapacitated come to the courthouse for the hearing; (iv) if the person alleged to be incapacitated cannot come to the courthouse, is the person completely unable to participate in the ing; (v), if the person alleged to be incapacitated cannot come to the courthouse, would any meaningful participation result from the person's presence at the hearing; (vi) are available resources sufficient and reliable to provide for personal needs or property management without the appointment of guardian; (vii) how is the person alleged to be incapacitated functioning with respect to the activities of daily living and what is the prognosis and reversibility of any physical and mental disabilities, alcoholism or substance dependence? The response to this question shall be based the evaluator's own assessment of the person alleged to be incapacitated to the extent possible, and where necessary, on the examination of sessments by third parties, including records of medical, psychological EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law her as as a on as the and/or psychiatric examinations obtained pursuant to subdivision (d) of person's understanding and appreciation of the nature and consequences of any inability to manage activities of daily living; (ix) what is the approximate value and nature of the financial resources of the person alleged to be incapacitated; (x) what are the person's preferences, wishes, and values with regard to managing the activities of daily living; (xi) has the person alleged to be incapacitated made any appointment or delegation pursuant to section 5-1501, 5-1601, or 5-1602 of the general obligations law, section two thousand nine hundred sixty-five or two thousand nine hundred eighty-one of the public health law, or a living will; (xii) what would be the least restrictive form of intervention consistent with the person's functional level and the powers proposed for the guardian; (xiii) what assistance is necessary for those who are financially dependent upon the person alleged to be incapacitated; (xiv) is the choice of proposed guardian appropriate and what steps has the proposed guardian taken or does the proposed guardian intend to take to identify and meet the current and emerging needs of the person alleged to be incapacitated; (XV) what potential conflicts of interest, if any, exist between or among family members and/or other interested parties regarding the proposed guardian or the proposed relief; (xvi) what potential conflicts of interest, if any, exist involving, the person alleged to be incapacitated, the petitioner, and the proposed guardian; and (xvii) are there any additional persons who should be given notice and an opportunity to be heard. In addition, the report and recommendations shall include any information required under subdivision (e) of this section, and any additional information required by the court. interviewing or consulting with professionals having specialized knowledge in the area of the person's alleged incapacity including but not limited to mental retardation, developmental' disabilities, alcohol and substance abuse, and geriatrics. 7. retaining an independent medical expert where the court finds it is appropriate, the cost of which is to be charged to the estate of the allegedly incapacitated person unless the person is indigent. 8. conducting any other investigations or making recomnendations with respect to other subjects as the court deems appropriate. 9. attending all court proceedings and conferences. (d) The court evaluator may apply to the court for permission to inspect records of medical, psychological and/or psychiatric examinations of the person alleged to be incapacitated; if the court determines that such records are likely to contain information which will assist the court evaluator, in completing his or her report to the court, the court may order the disclosure of such records to the court evaluator, notwithstanding the physician/patient privilege as set forth in section four thousand five hundred four of the civil practice law and rules; the court orders that such records be disclosed to the court evaluator, the court may, upon the court's own motion, at the request of the court evaluator, or upon the application of counsel for the person alleged to be incapacitated, or the petitioner, also direct such further disclosure of such records as the court deems proper. (e) The court evaluator shall have the authority to take the steps necessary to preserve the property of the person alleged to be incapaci; tated pending the hearing in the event the property is in danger of waste, misappropriation, or loss; if the court evaluator exercises authority under this subdivision, the court evaluator shall include in his or her report to the court an explanation of the actions the court evaluator has taken and the reasons for such actions. (f) When judgment grants a petition, the court may award a reasonable allowance to a court evaluator, including the mental hygiene legal service, payable by the estate of the allegedly incapacitated person. When a judgment denies or dismisses a petition, the court may award a reason, able allowance to a court evaluator, including the mental hygiene legal 6. if service, payable by the petitioner or by the person alleged to be inca- (a) Any person for whom relief under this article is sought shall have the right to be represented by, legal counsel of the person's choice. (b) If the person alleged to be incapacitated is not represented by counsel at the time of the issuance of the order to show cause, the court evaluator shall assist the court in accordance with subdivision (c) of section 81.09 of this article in determining whether counsel should be appointed. (c) The court shall appoint counsel in any of the following circumstances: 1. the person alleged to be incapacitated requests counsel; 2. the person alleged to be incapacitated wishes to contest the petition; 3. the person alleged to be incapacitated does not consent to the authority requested in the petition to move the person alleged to be incapacitated from where that person presently resides to a nursing home or other residential facility as those terms are defined in section two thousand eight hundred one of the public health law, or other similar facility : 4. if the petition alleges that the person is in need of major, medical or dental treatment and the person alleged to be incapacitated does not consent; 5. the petition requests temporary powers pursuant to section 81.23 of this article; 6. the court determines that a possible conflict may exist between the court evaluator's role and the advocacy needs of the person alleged to be incapacitated; 2. if at апу time the court determines that appointment of counsel would be helpful to the resolution of the matter. (d) If the person refuses the assistance of coun insel, the court may, nevertheless, appoint counsel if the court is not satisfied that the person is capable of making an informed decision regarding the appointment of counsel. (e) If the person alleged to be incapacitated resides in a facility, hospital, school, or an alcoholism facility as those terms defined in section 1.03 of this chapter, a substance abuse program as that term is defined in section 19.03 of this chapter, an aduit care facility that term is defined in section two of the social services law, or a residential health care facility or a general hospital those terms are defined in section two thousand eight hundred one of the public health law, the court may appoint as counsel the mental hygiene legal service in the judicial department where the residence is located. (f) The court shall determine the reasonable compensation for the mental hygiene legal service or any attorney appointed pursuant to this section. The person alleged to be incapacitated shall be liable for such compensation unless the court is satisfied that the person is indigent. If the petition is dismissed, the court may in its discretion direct that petitioner pay such compensation for the person to be incapacitated. 8) If the court appoints counsel under this section, the court may dispense with the appointment of a court evaluator may vacate (a) A determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after (b) In a proceeding brought pursuant to this article any party to the 1. present evidence; are inos as as or or a hearing, (c). The hearing must be conducted in the presence of the person alleged to be incapacitated, either at the courthouse or where the person alleged to be incapacitated resides, so as to permit the court to obtain its own impression of the person's capacity: If the person alleged to be incapacitated physically cannot come or be brought to the courthouse, the hearing, must be conducted where the person alleged to be incapacitated resides unless: 1. the person is not present in the state; or 2. all the information before the court clearly establishes that (1) the person alleged to be incapacitated is completely unable to participate in the hearing or (ii) no meaningful participation will result from the person's presence at the hearing: (d) If the hearing is conducted without the presence of the person alleged to be incapacitated and the court appoints a guardian, the order of appointment shall set forth the factual basis for conducting the hearing without the presence of the person for whom the appointment is made. (e) If the hearing is conducted in the presence of the person alleged to be incapacitated and the person is not represented by counsel,, the court shall explain to that person, on the record, the purpose and possible consequences of the proceeding, the right to be represented by counsel and the fact that the court will appoint an attorney to represent the person alleged to be incapacitated if the person wishes to be represented by counsel, and shall inquire of the person whether he or she wishes to have an attorney appointed. If the person refuses the assistance of counsel, the court may nevertheless appoint counsel if the court is not satisfied that the person is capable of making an informed decision regarding the appointment of counsel. (f) If any party to the proceeding on or before the return date designated in the order to show cause raises issues of fact regarding the need for an appointment under this article and demands a jury trial of such issues, the court shall order a trial by jury thereof. Failure to make such a demand shall be deemed a waiver of the right to trial by jury. $ 81.12 Burden and quantum of proof. (a) A determination that a person is incapacitated under the provisions of this article must be based on clear and convincing evidence. The burden of proof shall be on the petitioner. (b) The court may, for good cause shown, waive the rules of evidence. The report of the court evaluator may be admitted in evidence if the court evaluator testifies and is subject to cross examination; provided, however, that if the court determines that information contained in the report is, in the particular circumstance of the case, not sufficiently reliable, the court shall require that the person who provided the information testify and be subject to cross examination. § 81.13 Timing of hearing : A proceeding under this article is entitled to a preference over all other causes in the court. Unless the court, for good cause shown, ders otherwise, the hearing or trial shall be conducted within the time set forth in subdivision (a) of section 81.07 of this article. A decision shall be rendered within forty-five days of the date of the signing of the order to show cause, unless for good cause shown, the court tends the time period for rendering the decision. In the event the time period is extended, the court shall set forth the factual basis for the extension. The commission shall be issued to the guardian within fifteen days after the decision is rendered. § 81.14 Record of the proceedings. (a) A record of the proceedings shall be made in all cases. b) The court shall not enter an order șealing the court records in a proceeding under this article, either in whole or in part, except upon written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interest of the public, the orderly and sound administration of justice, the nature of the proceedings, and the privacy of the person alleged to be incapacitated. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard. Court records shall include all documents and records of any nature filed with the clerk in connection with the proceed ing: Documents obtained through disclosure and not filed with the clerk shall remain subject to protective orders under the civil practice law and rules. (c) The court shall not exclude a person or persons or the general public from a proceeding under this article except upon written findings or ex a of good cause shown. In determining whether good cause has been shown, (d) At the time of the commencement of the hearing, the court shall (a) Where the court determines that the person agrees to the appoint- 1. the person's agreement to the appointment; 3. the necessity of the appointment of a guardian as a means of 4. the specific powers of the guardian which constitute the least re. (b) Where the petition requests the appointment of a guardian to 1. the person's functional limitatiots which impair the person's abil- person's lack of understanding and appreciation of the nature 3. the likelihood that the person will suffer harm because of the person's functional limitations and inability to adequately understand and appreciate the nature and consequences of such functional limitations; 4. 'the necessity of the appointment of a guardian to prevent such 5. the specific powers of the guardian which constitute the least re- requests the appointment of a guardian for property, management for the person alleged to be incapacitated, and the court determines that the person is incapacitated and, that, the appointment of a guardian is necessary, the court shall make the following findings on the record : 1. the type and amount of the property and financial resources of the 2. the person's functional limitations which impair the person's abil- person's lack of understanding and appreciation of the nature 4. the likelihood that the person will suffer harm because of the any additional findings that are required under section 81.21 of the specific powers of the guardian which constitute the the nature 8. the duration of the appointment. If the person alleged to be incapacitated under this article is found tions; 5. harm; 7. if so, 14). rules |
