N.Y. Mental Hygiene Law § 81.16: Dispositional alternatives

§ 81.16 Dispositional alternatives.

(a) Dismissal of the petition.

If the person alleged to be incapacitated under this article is found

not to be incapacitated, the court shall dismiss the petition.

(b) Protective arrangements and single transactions. If the person

alleged to be incapacitated is found to be incapacitated, the court

without appointing a guardian, may authorize, direct, or ratify any

transaction or series of transactions necessary to achieve any security,

service, or care arrangement meeting the foreseeable needs of the

incapacitated person, or may authorize, direct, or ratify any contract,

trust, or other transaction relating to the incapacitated person's

property and financial affairs if the court determines that the

transaction is necessary as a means of providing for personal needs

and/or property management for the alleged incapacitated person. Before

approving a protective arrangement or other transaction under this

subdivision, the court shall consider the interests of dependents and

creditors of the incapacitated person, and in view of the person's

functional level, whether the person needs the continuing protection of

a guardian. The court may appoint a special guardian to assist in the

accomplishment of any protective arrangement or other transaction

authorized under this subdivision. The special guardian shall have the

authority conferred by the order of appointment, shall report to the

court on all matters done pursuant to the order of appointment and shall

serve until discharged by order of the court. The court may approve a

reasonable compensation for the special guardian; however, if the court

finds that the special guardian has failed to discharge his or her

duties satisfactorily in any respect, the court may deny or reduce the

amount of compensation or remove the special guardian.

(c) Appointing a guardian.

1. If the person alleged to be incapacitated is found to have agreed

to the appointment of a guardian and the court determines that the

appointment of a guardian is necessary, the order of the court shall be

designed to accomplish the least restrictive form of intervention by

appointing a guardian with powers limited to those which the court has

found necessary to assist the person in providing for personal needs

and/or property management.

2. If the person alleged to be incapacitated is found to be

incapacitated and the court determines that the appointment of a

guardian is necessary, the order of the court shall be designed to

accomplish the least restrictive form of intervention by appointing a

guardian with powers limited to those which the court has found

necessary to assist the incapacitated person in providing for personal

needs and/or property management.

3. The order of appointment shall identify all persons entitled to

notice of all further proceedings.

4. The order of appointment shall identify the persons entitled to

receive notice of the incapacitated person's death, the intended

disposition of the remains of the decedent, funeral arrangements and

final resting place when that information is known or can be reasonably

ascertained by the guardian.

5. The order of appointment may identify the person or persons

entitled to notice of the incapacitated person's transfer to a medical

facility.

6. The order of appointment may identify the persons entitled to visit

the incapacitated person, if they so choose. However, the identification

of such persons in the order shall in no way limit the persons entitled

to visit the incapacitated person.

(d) The court shall direct that a judgment be entered determining the

rights of the parties.

(e) The order and judgment must be entered and served within ten days

of the signing of the order. A copy of the order and judgment shall be

personally served upon and explained to the person who is the subject of

the proceedings in a manner which the person can reasonably be expected

to understand by the court evaluator, or by counsel for the person, or

by the guardian.

(f) When a petition is granted, or where the court otherwise deems it

appropriate, the court may award reasonable compensation for the

attorney for the petitioner, including the attorney general and the

attorney for a local department of social services.