N.Y. Mental Hygiene Law § 81.10: Counsel

§ 81.10 Counsel.

(a) Any person for whom relief under this article is sought shall have

the right to choose and engage legal counsel of the person's choice. In

such event, any attorney appointed pursuant to this section shall

continue his or her duties until the court has determined that retained

counsel has been chosen freely and independently by the alleged

incapacitated person.

(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 unless the court is satisfied that the alleged

incapacitated person is represented by counsel of his or her own

choosing:

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 the appointment of a temporary guardian

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;

7. if at any 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 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.

(e) 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 alleged to be

incapacitated. When the person alleged to be incapacitated dies before

the determination is made in the proceeding, the court may award

reasonable compensation to the mental hygiene legal service or any

attorney appointed pursuant to this section, payable by the petitioner

or the estate of the decedent or by both in such proportions as the

court may deem just.

(g) If the court appoints counsel under this section, the court may

dispense with the appointment of a court evaluator or may vacate or

suspend the appointment of a previously appointed court evaluator.