N.Y. Mental Hygiene Law § 81.02: Power to appoint a guardian of the person and/or property; standard for appointment

§ 81.02 Power to appoint a guardian of the person and/or property;

standard for appointment.

(a) The court may appoint a guardian for a person if the court

determines:

1. that the appointment is necessary to provide for the personal needs

of that person, including food, clothing, shelter, health care, or

safety and/or to manage the property and financial affairs of that

person; and

2. that the person agrees to the appointment, or that the person is

incapacitated as defined in subdivision (b) of this section. In deciding

whether the appointment is necessary, the court shall consider the

report of the court evaluator, as required in paragraph five of

subdivision (c) of section 81.09 of this article, and the sufficiency

and reliability of available resources, as defined in subdivision (e) of

section 81.03 of this article, to provide for personal needs or property

management without the appointment of a guardian. Any guardian appointed

under this article shall be granted only those powers which are

necessary to provide for personal needs and/or property management of

the incapacitated person in such a manner as appropriate to the

individual and which shall constitute the least restrictive form of

intervention, as defined in subdivision (d) of section 81.03 of this

article.

(b) The determination of incapacity shall be based on clear and

convincing evidence and shall consist of a determination that a person

is likely to suffer harm because:

1. the person is unable to provide for personal needs and/or property

management; and

2. the person cannot adequately understand and appreciate the nature

and consequences of such inability.

(c) In reaching its determination, the court shall give primary

consideration to the functional level and functional limitations of the

person. Such consideration shall include an assessment of that person's:

1. management of the activities of daily living, as defined in

subdivision (h) of section 81.03 of this article;

2. understanding and appreciation of the nature and consequences of

any inability to manage the activities of daily living;

3. preferences, wishes, and values with regard to managing the

activities of daily living; and

4. the nature and extent of the person's property and financial

affairs and his or her ability to manage them.

It shall also include an assessment of (i) the extent of the demands

placed on the person by that person's personal needs and by the nature

and extent of that person's property and financial affairs; (ii) any

physical illness and the prognosis of such illness; (iii) any mental

disability, as that term is defined in section 1.03 of this chapter,

alcoholism or substance dependence as those terms are defined in section

19.03 of this chapter, and the prognosis of such disability, alcoholism

or substance dependence; and (iv) any medications with which the person

is being treated and their effect on the person's behavior, cognition

and judgment.

(d) In addition, the court shall consider all other relevant facts and

circumstances regarding the person's:

1. functional level; and

2. understanding and appreciation of the nature and consequences of

his or her functional limitations.