N.Y. Mental Hygiene Law § 81.23: Provisional remedies

§ 81.23 Provisional remedies.

(a) Temporary guardian.

1. At the commencement of the proceeding or at any subsequent stage of

the proceeding prior to the appointment of a guardian, the court may,

upon showing of danger in the reasonably foreseeable future to the

health and well being of the alleged incapacitated person, or danger of

waste, misappropriation, or loss of the property of the alleged

incapacitated person, appoint a temporary guardian for a period not to

extend beyond the date of the issuance of the commission to a guardian

appointed pursuant to this article. The powers and duties of the

temporary guardian shall be specifically enumerated in the order of

appointment and are limited in the same manner as are the powers of a

guardian appointed pursuant to this article. Prior to the expiration of

the term of appointment, the temporary guardian shall report to the

court all actions taken pursuant to the order appointment. The court may

approve a reasonable compensation for the temporary guardian; however,

if the court finds that the temporary 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 temporary guardian.

2. Notice of the appointment of the temporary guardian shall be given

to the person alleged to be incapacitated and to any person having

custody or control over the person or property of the person alleged to

be incapacitated in such manner as the court may prescribe.

3. The authority and responsibility of a temporary guardian begins

upon the issuance of the commission of temporary guardianship.

4. The court may require the temporary guardian to file a bond in

accordance with section 81.25 of this article.

(b) Injunction and temporary restraining order.

1. The court may, at any time prior to or after the appointment of a

guardian or at the time of the appointment of a guardian with or without

security, enjoin any person, other than the incapacitated person or the

person alleged to be incapacitated from selling, assigning, or from

disposing of property or confessing judgment which may become a lien on

property or receiving or arranging for another person to receive

property from the incapacitated person or the person alleged to be

incapacitated or doing or suffering to be done any act or omission

endangering the health, safety or welfare of the incapacitated person or

the person alleged to be incapacitated when an application under this

article seeks such an injunction and it satisfactorily appears from the

application, affidavits, and other proofs that a person has done, has

suffered to be done or omitted to do, or threatens to do or is about to

do an act that endangers the health, safety or welfare of the

incapacitated person or the person alleged to be incapacitated or has

acquired or is about to acquire any property from the incapacitated

person or person alleged to be incapacitated during the time of that

person's incapacity or alleged incapacity without adequate

consideration. Such order shall be made upon an order to show cause or

upon the initiative of the court and may, upon the application for the

appointment of a guardian, in the discretion of the court, be continued

for ten days after the appointment of a guardian. Notice of any

injunction shall be given to any person enjoined, to the incapacitated

person or the person alleged to be incapacitated, and to any person

having custody or control over the person or property of the

incapacitated person or the person alleged to be incapacitated in such

manner as the court may prescribe.

2. A temporary restraining order may be granted with or without

security when an application seeks an injunction under paragraph one of

this subdivision and where the court is satisfied that in the absence of

such restraining order, the property of the incapacitated person or

person alleged to be incapacitated would be dissipated to that person's

detriment or that the health, safety or welfare of the incapacitated

person or the person alleged to be incapacitated would be endangered.

Notice of the temporary restraining order shall be given to any person

restrained, to the incapacitated person or the person alleged to be

incapacitated, and to any person having custody or control over the

person or property of the incapacitated person or person alleged to be

incapacitated in such manner as the court may prescribe. Such temporary

restraining order shall neither be vacated nor modified except upon

notice to the petitioner and to each person required to receive notice

of the petition pursuant to paragraph one of subdivision (g) of section

81.07 of this article.

3. When the court is satisfied that the interest of the incapacitated

person or person alleged to be incapacitated would be appropriately

served, the court may provide in a temporary restraining order that such

temporary restraining order shall have the effect of:

(i) a restraining notice when served in a manner and upon such persons

as the court in its discretion shall deem appropriate;

(ii) conferring information subpoena power upon the attorney for the

petitioner when the court in its discretion shall deem appropriate.

4. Where such a temporary restraining order provides for a restraining

notice a person having custody or control over the person or property of

the incapacitated person or the person alleged to be incapacitated is

forbidden to make or suffer any sale, assignment, transfer or

interference with any property of the incapacitated person or the person

alleged to be incapacitated except pursuant to the order of the court.

5. Where such a temporary restraining order provides the petitioner's

attorney with information subpoena power, service of a copy of the order

together with an information subpoena shall require any person so

subpoenaed to provide petitioner's attorney with any information

concerning the financial affairs of the incapacitated person or the

person alleged to be incapacitated.