§ 81.07 — Notice

New York § 81.07

• 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

§ 81.07 Notice.\n (a) Proceeding. A proceeding under this article shall be commenced\nupon the filing of the petition.\n (b) Order to show cause. Upon the filing of the petition, the court\nshall:\n 1. set the date on which the order to show cause is heard no more than\ntwenty-eight days from the date of the signing of the order to show\ncause. The court may for good cause shown set a date less than\ntwenty-eight days from the date of the signing of the order to show\ncause. The date of the hearing may be adjourned only for good cause\nshown;\n 2. include in the order to show cause the name, address, and telephone\nnumber of the person appointed as court evaluator in accordance with\nsection 81.09 of this article;\n 3. require the order to show cause to be served together with a copy\nof the petition and any supporting papers upon the alleged incapacitated\nperson, the court evaluator, and counsel for the alleged incapacitated\nperson in the form and manner prescribed in this section; the court\nshall not require that supporting papers contain medical information;\nand\n 4. require notice of the proceeding together with a copy of the order\nto show cause to be given to the persons identified in paragraph one of\nsubdivision (e) of this section and in the form and manner prescribed in\nthis section.\n (c) Form of the order to show cause. The order to show cause shall be\nwritten in large type, in plain language, and in a language other than\nEnglish if necessary to inform the person alleged to be incapacitated of\nhis or her rights, and shall include the following information:\n 1. date, time, and place of the hearing of the petition;\n 2. a clear and easily readable statement of the rights of the person\nalleged to be incapacitated that are set forth in section 81.11 of this\narticle;\n 3. the name, address, and telephone number of the person appointed as\ncourt evaluator pursuant to section 81.09 of this article;\n 4. the name, address, and telephone number of the attorney if one has\nbeen appointed for the person alleged to be incapacitated pursuant to\nsection 81.10 of this article; and\n 5. a list of the powers which the guardian would have the authority to\nexercise on behalf of the person alleged to be incapacitated if the\nrelief sought in the petition is granted.\n (d) Legend. The order to show cause shall also include on its face the\nfollowing legend in twelve point or larger bold face double spaced type:\n IMPORTANT\n An application has been filed in court by ____________ who believes\nyou may be unable to take care of your personal needs or financial\naffairs. ______ is asking that someone be appointed to make decisions\nfor you. With this paper is a copy of the application to the court\nshowing why ______________ believes you may be unable to take care of\nyour personal needs or financial affairs. Before the court makes the\nappointment of someone to make decisions for you the court holds a\nhearing at which you are entitled to be present and to tell the judge if\nyou do not want anyone appointed. This paper tells you when the court\nhearing will take place. If you do not appear in court, your rights may\nbe seriously affected.\n You have the right to demand a trial by jury. You must tell the court\nif you wish to have a trial by jury. If you do not tell the court, the\nhearing will be conducted without a jury. The name and address, and\ntelephone number of the clerk of the court are:\n The court has appointed a court evaluator to explain this proceeding\nto you and to investigate the claims made in the application. The court\nmay give the court evaluator permission to inspect your medical,\npsychological, or psychiatric records. You have the right to tell the\njudge if you do not want the court evaluator to be given that\npermission. The court evaluator's name, address, and telephone number\nare:\n You are entitled to have a lawyer of your choice represent you. If you\nwant the court to appoint a lawyer to help you and represent you, the\ncourt will appoint a lawyer for you. You will be required to pay that\nlawyer unless you do not have the money to do so.\n (e) Service of the order to show cause.\n 1. The persons entitled to service of the order to show cause shall\ninclude:\n (i) the person alleged to be incapacitated; and\n (ii) the attorney for the person alleged to be incapacitated, if known\nto the petitioner; and\n (iii) the court evaluator.\n 2. Manner of service.\n (i) the order to show cause and a copy of the petition shall be\npersonally delivered to the person alleged to be incapacitated not less\nthan fourteen days prior to the hearing date of the order to show cause.\nHowever, the court may direct that the order to show cause and a copy of\nthe petition be served on the person alleged to be incapacitated in a\nmanner other than personal delivery when the petitioner demonstrates to\nthe court's satisfaction that the person alleged to be incapacitated has\nrefused to accept service.\n (ii) the order to show cause and a copy of the petition shall be\nserved upon the court evaluator and the attorney for the alleged\nincapacitated person, if there is one, by facsimile, provided that a\nfacsimile telephone number is designated by the attorney for that\npurpose, or by delivering the papers personally or by overnight delivery\nservice to the office of the court evaluator and the attorney for the\nalleged incapacitated person, if there is one, within three business\ndays following the appointment of the court evaluator and the\nappointment of the attorney or the appearance of an attorney retained by\nthe alleged incapacitated person.\n 3. The court may direct that the order to show cause be served within\na time period less than the period required in paragraph two of this\nsubdivision for good cause shown.\n (f) Form of the notice of the proceeding. The notice of the proceeding\nshall substantially set forth:\n 1. The name and address of the alleged incapacitated person to whom\nthe guardianship proceeding relates;\n 2. The name and address of the petitioner;\n 3. The names of all persons to be given notice of the proceeding;\n 4. The time when and the place where the order to show cause shall be\nheard;\n 5. The object of the proceeding and the relief sought in the petition;\n 6. The name, address and telephone number of the petitioner's\nattorney.\n (g) Notice of the proceeding.\n 1. Persons entitled to notice of the proceeding shall include:\n (i) the following persons, other than the petitioner, who are known to\nthe petitioner or whose existence and address can be ascertained by the\npetitioner with reasonably diligent efforts: the spouse of the person\nalleged to be incapacitated, if any; the parents of the person alleged\nto be incapacitated, if living; the adult children of the person alleged\nto be incapacitated, if any; the adult siblings of the person alleged to\nbe incapacitated, if any; the person or persons with whom person alleged\nto be incapacitated resides; and\n (ii) in the event no person listed in subparagraph (i) of this\nparagraph is given notice, then notice shall be given to at least one\nand not more than three of the living relatives of the person alleged to\nbe incapacitated in the nearest degree of kinship who are known to the\npetitioner or whose existence and address can be ascertained by the\npetitioner with reasonably diligent efforts; and\n (iii) any person or persons designated by the alleged incapacitated\nperson with authority pursuant to sections 5-1501, 5-1505, and 5-1506 of\nthe general obligations law, or sections two thousand nine hundred five\nand two thousand nine hundred eighty-one of the public health law, if\nknown to the petitioner; and\n (iv) if known to the petitioner, any person, whether or not a relative\nof the person alleged to be incapacitated, or organization that has\ndemonstrated a genuine interest in promoting the best interests of the\nperson alleged to be incapacitated such as by having a personal\nrelationship with the person, regularly visiting the person, or\nregularly communicating with the person; and\n (v) if it is known to the petitioner that the person alleged to be\nincapacitated receives public assistance or protective services under\narticle nine-B of the social services law, the local department of\nsocial services; and\n (vi) if the person alleged to be incapacitated resides in a facility,\nthe chief executive officer in charge of the facility; and\n (vii) if the person alleged to be incapacitated resides in a mental\nhygiene facility, the mental hygiene legal service of the judicial\ndepartment in which the residence is located; and\n (viii) such other persons as the court may direct based on the\nrecommendation of the court evaluator in accordance with subparagraph\n(xvii) of paragraph five of subdivision (c) of section 81.09 of this\narticle.\n 2. Notice of the proceeding together with a copy of the order to show\ncause shall be mailed to the persons identified in paragraph one of this\nsubdivision not less than fourteen days prior to the hearing date in the\norder to show cause.\n 3. The court may direct that the notice of proceeding be mailed within\na time period less than the period required in paragraph two of this\nsubdivision for good cause shown.\n