§ 81.02 — Power to appoint a guardian of the person and/or property; standard for appointment

New York § 81.02

• Jurisdiction: New York
• Law MHY: Mental Hygiene
• Title E: General Provisions
• Art. 81: Proceedings For Appointment of a Guardian For Personal Needs or Property Management

Text

§ 81.02 Power to appoint a guardian of the person and/or property;\n standard for appointment.\n (a) The court may appoint a guardian for a person if the court\ndetermines:\n 1. that the appointment is necessary to provide for the personal needs\nof that person, including food, clothing, shelter, health care, or\nsafety and/or to manage the property and financial affairs of that\nperson; and\n 2. that the person agrees to the appointment, or that the person is\nincapacitated as defined in subdivision (b) of this section. In deciding\nwhether the appointment is necessary, the court shall consider the\nreport of the court evaluator, as required in paragraph five of\nsubdivision (c) of section 81.09 of this article, and the sufficiency\nand reliability of available resources, as defined in subdivision (e) of\nsection 81.03 of this article, to provide for personal needs or property\nmanagement without the appointment of a guardian. Any guardian appointed\nunder this article shall be granted only those powers which are\nnecessary to provide for personal needs and/or property management of\nthe incapacitated person in such a manner as appropriate to the\nindividual and which shall constitute the least restrictive form of\nintervention, as defined in subdivision (d) of section 81.03 of this\narticle.\n (b) The determination of incapacity shall be based on clear and\nconvincing evidence and shall consist of a determination that a person\nis likely to suffer harm because:\n 1. the person is unable to provide for personal needs and/or property\nmanagement; and\n 2. the person cannot adequately understand and appreciate the nature\nand consequences of such inability.\n (c) In reaching its determination, the court shall give primary\nconsideration to the functional level and functional limitations of the\nperson. Such consideration shall include an assessment of that person's:\n 1. management of the activities of daily living, as defined in\nsubdivision (h) of section 81.03 of this article;\n 2. understanding and appreciation of the nature and consequences of\nany inability to manage the activities of daily living;\n 3. preferences, wishes, and values with regard to managing the\nactivities of daily living; and\n 4. the nature and extent of the person's property and financial\naffairs and his or her ability to manage them.\n It shall also include an assessment of (i) the extent of the demands\nplaced on the person by that person's personal needs and by the nature\nand extent of that person's property and financial affairs; (ii) any\nphysical illness and the prognosis of such illness; (iii) any mental\ndisability, as that term is defined in section 1.03 of this chapter,\nalcoholism or substance dependence as those terms are defined in section\n19.03 of this chapter, and the prognosis of such disability, alcoholism\nor substance dependence; and (iv) any medications with which the person\nis being treated and their effect on the person's behavior, cognition\nand judgment.\n (d) In addition, the court shall consider all other relevant facts and\ncircumstances regarding the person's:\n 1. functional level; and\n 2. understanding and appreciation of the nature and consequences of\nhis or her functional limitations.\n