N.Y. MHY Law § 81.23 — New York Code / Act MHY / Title E / Article 81 / Section 81.23
Provisional remedies
Status: in_force

§ 81.23 Provisional remedies.\n  (a) Temporary guardian.\n  1. At the commencement of the proceeding or at any subsequent stage of\nthe proceeding prior to the appointment of a guardian, the court may,\nupon showing of danger in the reasonably foreseeable future to the\nhealth and well being of the alleged incapacitated person, or danger of\nwaste, misappropriation, or loss of the property of the alleged\nincapacitated person, appoint a temporary guardian for a period not to\nextend beyond the date of the issuance of the commission to a guardian\nappointed pursuant to this article. The powers and duties of the\ntemporary guardian shall be specifically enumerated in the order of\nappointment and are limited in the same manner as are the powers of a\nguardian appointed pursuant to this article. Prior to the expiration of\nthe term of appointment, the temporary guardian shall report to the\ncourt all actions taken pursuant to the order appointment. The court may\napprove a reasonable compensation for the temporary guardian; however,\nif the court finds that the temporary guardian has failed to discharge\nhis or her duties satisfactorily in any respect, the court may deny or\nreduce the amount of compensation or remove the temporary guardian.\n  2. Notice of the appointment of the temporary guardian shall be given\nto the person alleged to be incapacitated and to any person having\ncustody or control over the person or property of the person alleged to\nbe incapacitated in such manner as the court may prescribe.\n  3. The authority and responsibility of a temporary guardian begins\nupon the issuance of the commission of temporary guardianship.\n  4. The court may require the temporary guardian to file a bond in\naccordance with section 81.25 of this article.\n  (b) Injunction and temporary restraining order.\n  1. The court may, at any time prior to or after the appointment of a\nguardian or at the time of the appointment of a guardian with or without\nsecurity, enjoin any person, other than the incapacitated person or the\nperson alleged to be incapacitated from selling, assigning, or from\ndisposing of property or confessing judgment which may become a lien on\nproperty or receiving or arranging for another person to receive\nproperty from the incapacitated person or the person alleged to be\nincapacitated or doing or suffering to be done any act or omission\nendangering the health, safety or welfare of the incapacitated person or\nthe person alleged to be incapacitated when an application under this\narticle seeks such an injunction and it satisfactorily appears from the\napplication, affidavits, and other proofs that a person has done, has\nsuffered to be done or omitted to do, or threatens to do or is about to\ndo an act that endangers the health, safety or welfare of the\nincapacitated person or the person alleged to be incapacitated or has\nacquired or is about to acquire any property from the incapacitated\nperson or person alleged to be incapacitated during the time of that\nperson's incapacity or alleged incapacity without adequate\nconsideration. Such order shall be made upon an order to show cause or\nupon the initiative of the court and may, upon the application for the\nappointment of a guardian, in the discretion of the court, be continued\nfor ten days after the appointment of a guardian. Notice of any\ninjunction shall be given to any person enjoined, to the incapacitated\nperson or the person alleged to be incapacitated, and to any person\nhaving custody or control over the person or property of the\nincapacitated person or the person alleged to be incapacitated in such\nmanner as the court may prescribe.\n  2. A temporary restraining order may be granted with or without\nsecurity when an application seeks an injunction under paragraph one of\nthis subdivision and where the court is satisfied that in the absence of\nsuch restraining order, the property of the incapacitated person or\nperson alleged to be incapacitated would be dissipated to that person's\ndetriment or that the health, safety or welfare of the incapacitated\nperson or the person alleged to be incapacitated would be endangered.\nNotice of the temporary restraining order shall be given to any person\nrestrained, to the incapacitated person or the person alleged to be\nincapacitated, and to any person having custody or control over the\nperson or property of the incapacitated person or person alleged to be\nincapacitated in such manner as the court may prescribe. Such temporary\nrestraining order shall neither be vacated nor modified except upon\nnotice to the petitioner and to each person required to receive notice\nof the petition pursuant to paragraph one of subdivision (g) of section\n81.07 of this article.\n  3. When the court is satisfied that the interest of the incapacitated\nperson or person alleged to be incapacitated would be appropriately\nserved, the court may provide in a temporary restraining order that such\ntemporary restraining order shall have the effect of:\n  (i) a restraining notice when served in a manner and upon such persons\nas the court in its discretion shall deem appropriate;\n  (ii) conferring information subpoena power upon the attorney for the\npetitioner when the court in its discretion shall deem appropriate.\n  4. Where such a temporary restraining order provides for a restraining\nnotice a person having custody or control over the person or property of\nthe incapacitated person or the person alleged to be incapacitated is\nforbidden to make or suffer any sale, assignment, transfer or\ninterference with any property of the incapacitated person or the person\nalleged to be incapacitated except pursuant to the order of the court.\n  5. Where such a temporary restraining order provides the petitioner's\nattorney with information subpoena power, service of a copy of the order\ntogether with an information subpoena shall require any person so\nsubpoenaed to provide petitioner's attorney with any information\nconcerning the financial affairs of the incapacitated person or the\nperson alleged to be incapacitated.\n