§ 473-A — Short-term involuntary protective services orders

§ 473-a. Short-term involuntary protective services orders. 1.\nDefinitions. When used in this section unless otherwise expressly stated\nor unless the context or subject matter requires a different\ninterpretation:\n (a) "endangered adult" means a person, age eighteen or over who is:\n (i) in a situation or condition which poses an imminent risk of death\nor imminent risk of serious physical harm to him or her, and\n (ii) lacking capacity to comprehend the nature and consequences of\nremaining in that situation or condition, provided that:\n a. refusal by the adult to accept protective services shall not in\nitself be sufficient evidence of such lack of capacity; and\n b. mental illness shall not in itself be sufficient evidence of such\nlack of capacity.\n (b) "short-term involuntary protective services" means those services\nset forth in section four hundred seventy-three of this article which\nare provided involuntarily pursuant to the procedures established by\nthis title.\n (c) "petitioner" means a social services official initiating a\nproceeding pursuant to this title.\n (d) "respondent" means an allegedly endangered adult.\n 2. Jurisdiction. The supreme court and the county court shall each\nhave jurisdiction over the special proceeding commenced pursuant to the\nprovisions of this title.\n 3. Venue. A petition for the provision of short-term involuntary\nprotective services shall be made to:\n (a) a term of the supreme court:\n (i) held in the county in which the allegedly endangered adult resides\nor is found; or\n (ii) held in a county, within the same judicial district, adjacent to\nthe county in which the allegedly endangered adult resides or is found;\nor\n (b) the county court:\n (i) in the county in which the allegedly endangered adult resides or\nis found; or\n (ii) in a county adjacent to the county in which the allegedly\nendangered adult resides or is found.\n 4. Petition. (a) A special proceeding to obtain an order authorizing\nthe provision of short-term involuntary protective services may only be\ninitiated by a social services official.\n (b) The petition shall state, insofar as the facts can be ascertained\nwith reasonable diligence:\n (i) the name, age and physical description of the allegedly endangered\nadult; and\n (ii) the address or other location where the allegedly endangered\nadult can be found.\n (c) The petition shall state facts showing:\n (i) that the adult who is the subject of this petition is an\nendangered adult as defined in paragraph (a) of subdivision one of this\nsection;\n (ii) the specific short-term involuntary protective services\npetitioned for, how such services would remedy the situation or\ncondition which poses an imminent risk of death or imminent risk of\nserious physical harm to the allegedly endangered adult, and why such\nservices are not overbroad as to extent or duration;\n (iii) that the short-term involuntary protective services being\napplied for are necessitated by the situation or condition described in\nparagraph (a) of subdivision one of this section;\n (iv) that other voluntary protective services have been tried and have\nfailed to remedy the situation, and that a future, voluntary, less\nrestrictive alternative would not be appropriate or would not be\navailable;\n (v) if a change in the allegedly endangered adult's physical location\nis being applied for, that remedy of the dangerous situation or\ncondition described in paragraph (a) of subdivision one of this section\nis not appropriate in existing physical surroundings of the allegedly\nendangered adult;\n (vi) any inconsistency known to petitioner between the proposed\nshort-term involuntary protective services and the allegedly endangered\nadult's religious belief;\n (vii) that if it reasonably appears that the allegedly endangered\nadult does not understand the English language, that reasonable efforts\nhave been made to communicate with the allegedly endangered adult in a\nlanguage he or she understands;\n (viii) that no prior application has been made for the relief\nrequested or for any similar relief, or if prior application has been\nmade, the determination thereof, and the new facts, if any, that were\nnot previously shown which warrant a renewal of the application.\n (d) The petition shall be verified. Any allegations which are not\nbased upon personal knowledge shall be supported by affidavits provided\nby a person or persons having such knowledge. Such affidavits shall be\nattached to the petition.\n 5. Commencement of proceedings. (a) A special proceeding to obtain an\norder authorizing the provision of short-term involuntary protective\nservices shall be commenced by an order to show cause, the petition and\nsupporting affidavits, if any.\n (b) The order to show cause shall set forth:\n (i) in bold type, on its face, the following:\n WARNING IF YOU DO NOT APPEAR IN COURT YOUR LIFE AND LIBERTY MAY BE\n SERIOUSLY AFFECTED. FOR FREE INFORMATION CONCERNING YOUR LEGAL RIGHTS\n CALL OR VISIT\n (ii) the protective services to be provided if the petition is\ngranted;\n (iii) the date, place and time of the hearing to determine whether the\npetition is to be granted;\n (iv) that the respondent is entitled to counsel at all stages of the\nproceeding, that upon granting the order to show cause, the court shall\nassign counsel to assist the respondent, and that respondent is free at\nany time to discharge the counsel assigned by the court. The name,\naddress and telephone number of the assigned counsel shall be inserted\nat the end of the warning referred to in subparagraph (i) of this\nparagraph;\n (v) that if the respondent or retained counsel does not appear at the\nhearing to determine whether the petition is to be granted, the court\nwill appoint a guardian ad litem;\n (vi) that if the respondent discharges the assigned counsel prior to\nthe hearing to determine if the petition is to be granted, such counsel\nshall report this fact to the court no later than the commencement of\nthe hearing, and shall appear at the hearing, unless otherwise relieved\nby the court. In the event that neither the respondent nor his retained\ncounsel appears at the hearing, the court may appoint the person\npreviously assigned as counsel to act as the guardian ad litem; and\n (vii) that a copy of the order to show cause, the petition, and\nsupporting affidavits, if any, shall be served upon the respondent.\n (c) Petitioner shall cause the order to show cause, the petition, and\nsupporting affidavits, if any, to be delivered to the counsel assigned\nby the court.\n (d) The order to show cause shall be made returnable within\nforty-eight hours following its issuance, unless such forty-eight hour\nperiod ends on a day in which the court is not in session, in which case\nthe return date shall be the first business day following issuance of\nthe order to show cause.\n 6. Service. (a) Service of the order to show cause, the petition, and\nsupporting affidavits, if any, shall be made upon the respondent by any\nof the methods permitted by section three hundred eight of the civil\npractice law and rules. Notwithstanding any other provision of law to\nthe contrary, Saturday and Sunday service is valid.\n (b) The respondent shall be authorized to answer either orally or in\nwriting.\n 7. Hearing. (a) Upon the return date designated in the order to show\ncause issued pursuant to subdivision five of this section a hearing\nshall be held forthwith.\n (b) The allegedly endangered adult shall be entitled to be present at\nthe hearing.\n (c) Adjournments shall be permitted only for good cause shown. In\ngranting adjournments the court shall consider the need to provide\nshort-term involuntary services expeditiously.\n (d) At the conclusion of the hearing the court shall issue for the\nrecord a statement of its findings of fact and conclusions of law.\n 8. Preference. The special proceeding authorized by this title shall\nhave preference over all other causes in all courts of appropriate\njurisdiction.\n 9. Findings. After a hearing, the court must find, in order to\nauthorize the provision of short-term involuntary protective services,\nthat all of the material allegations as specified in paragraph (c) of\nsubdivision four of this section have been admitted or proven by clear\nand convincing proof.\n 10. Judgment. (a) The court, upon making the findings required by\nsubdivision nine herein, shall direct the entry of a judgment\nauthorizing the provision of short-term involuntary protective services\nto an endangered adult.\n (b) A judgment authorizing short-term involuntary protective services\nto be provided to an endangered adult:\n (i) shall prescribe those specific protective services, authorized by\nsection four hundred seventy-three of this article, which are to be\nprovided and what person or persons are authorized or ordered to provide\nthem; and\n (ii) shall not provide for any forcible entry unless the persons so\nentering are accompanied by a peace officer, acting pursuant to his\nspecial duties, or a police officer, who is a member of an authorized\npolice department or force or of a sheriff's department;\n (iii) shall require persons acting under subparagraphs (i) and (ii) of\nthis paragraph to submit a written report to the court within one week\nfollowing the commencement of the ordered protective services.\n (c) The judgment may order any other public or law enforcement\nofficial to render such assistance and cooperation as shall be within\nhis legal authority, as may be required to further the objects of this\ntitle.\n (d) The judgment shall not order removal to a hospital, as that term\nis defined in section 1.03 of the mental hygiene law.\n (e) Issuance of the judgment shall not be evidence of the competency\nor incompetency of the endangered adult.\n (f) No order issued pursuant to this title shall extend for more than\nseventy-two hours. An original order may be renewed once for up to\nanother seventy-two hour period upon showing by the petitioner to the\ncourt that continuation is necessary to remedy the original situation or\ncondition. No further renewals shall be permitted.\n (g) In no event shall the short-term involuntary services authorized\nto be provided to an endangered adult by the judgment be broader than\nthose which are necessary to remedy the situation or condition which\nposes an imminent risk of death or imminent risk of serious physical\nharm to the endangered adult.\n (h) Notice of the judgment rendered by the court shall be given to the\nrespondent personally, or if personal service is not possible in\nwhatever other fashion the court shall prescribe.\n 11. Appeals. Appeals arising from the issuance of judgments pursuant\nto the provisions of this title shall be expedited.\n 12. The assigned counsel and the guardian ad litem appointed by the\ncourt pursuant to this title shall be reimbursed for their services\npursuant to section thirty-five of the judiciary law.\n 13. Nothing in this title precludes the simultaneous commencement of a\nproceeding under this title and a proceeding under section 9.43 of the\nmental hygiene law, or a proceeding under article seventy-seven or\narticle seventy-eight of such law. A pending proceeding under section\n9.43 of the mental hygiene law or under article seventy-seven or article\nseventy-eight of the mental hygiene law does not preclude commencement\nof a proceeding under this title.\n 14. No existing right or remedy of any character shall be lost,\nimpaired or affected by reason of this title.\n