N.Y. MHY Law § 81.19 — New York Code / Act MHY / Title E / Article 81 / Section 81.19
Eligibility as guardian
Status: in_force

§ 81.19 Eligibility as guardian.\n  (a) 1. Any individual over eighteen years of age, or any parent under\neighteen years of age, who is found by the court to be suitable to\nexercise the powers necessary to assist the incapacitated person may be\nappointed as guardian, including but not limited to a spouse, adult\nchild, parent, or sibling.\n  2. A not-for-profit corporation organized to act in such capacity, a\nsocial services official, or public agency authorized to act in such\ncapacity which has a concern for the incapacitated person, and any\ncommunity guardian program operating pursuant to the provisions of title\nthree of article nine-B of the social services law which is found by the\ncourt to be suitable to perform the duties necessary to assist the\nincapacitated person may be appointed as guardian, provided that a\ncommunity guardian program shall be appointed as guardian only where a\nspecial proceeding for the appointment of a guardian under this article\nhas been commenced by a social services official with whom such program\nwas contracted.\n  3. A corporation, except that no corporation (other than as provided\nin paragraph two of this subdivision) may be authorized to exercise the\npowers necessary to assist the incapacitated person with personal needs.\n  (b) The court shall appoint a person nominated as the guardian in\naccordance with the provisions of section 81.17 of this article unless\nthe court determines the nominee is unfit or the alleged incapacitated\nperson indicates that he or she no longer wishes the nominee to be\nappointed.\n  (c) In the absence of a nomination in accordance with section 81.17 of\nthis article, the court shall appoint a person nominated by the person\nalleged to be incapacitated orally or by conduct during the hearing or\ntrial unless the court determines for good cause that such appointment\nis not appropriate.\n  (d) In making any appointment under this article the court shall\nconsider:\n  1. any appointment or delegation made by the person alleged to be\nincapacitated in accordance with the provisions of section 5-1501,\n5-1601 or 5-1602 of the general obligations law and sections two\nthousand nine hundred sixty-five and two thousand nine hundred\neighty-one of the public health law;\n  2. the social relationship between the incapacitated person and the\nperson, if any, proposed as guardian, and the social relationship\nbetween the incapacitated person and other persons concerned with the\nwelfare of the incapacitated person;\n  3. the care and services being provided to the incapacitated person at\nthe time of the proceeding;\n  4. the powers which the guardian will exercise;\n  5. the educational, professional and business experience relevant to\nthe nature of the services sought to be provided;\n  6. the nature of the financial resources involved;\n  7. the unique requirements of the incapacitated person; and\n  8. any conflicts of interest between the person proposed as guardian\nand the incapacitated person.\n  (e) Unless the court finds that no other person or corporation is\navailable or willing to act as guardian, or to provide needed services\nfor the incapacitated person, the following persons or corporations may\nnot serve as guardian:\n  1. one whose only interest in the person alleged to be incapacitated\nis that of a creditor;\n  2. one, other than a relative, who is a provider, or the employee of a\nprovider, of health care, day care, educational, or residential services\nto the incapacitated person, whether direct or indirect.\n  (f) Mental hygiene legal service may not serve as a guardian.\n  (g) 1. In making an appointment or considering a revocation of an\nappointment under this article, the court also may obtain and consider,\nand may authorize a court evaluator to review the same and report to the\ncourt concerning, any of the following information regarding the\nguardian or proposed guardian, and, if the incapacitated person resides\nor will reside with such guardian or proposed guardian, any person\neighteen years or older residing in the guardian or proposed guardian's\nhousehold:\n  (i) a criminal history record check of such person or persons; and in\nfurtherance thereof, the court shall be authorized to: (1) obtain a set\nof such person's fingerprints; (2) direct that the division of criminal\njustice services promptly provide to the court a criminal history\nrecord, if any, with respect to such person or a statement that such\nperson has no criminal record; and (3) direct the submission of such\nperson's fingerprints by the division of criminal justice services to\nthe federal bureau of investigation for purposes of a nationwide\ncriminal history record check pursuant to and consistent with public law\n92-544 to determine if such person has a criminal history in any state\nor federal jurisdiction;\n  (ii) reports for such person or persons from the sex offender registry\nestablished and maintained pursuant to section one hundred sixty-eight-b\nof the correction law;\n  (iii) indicated reports for such person or persons from the statewide\ncentral register of child abuse and maltreatment established and\nmaintained pursuant to section four hundred twenty-two of the social\nservices law, upon a finding by the court, pursuant to paragraph e of\nsubdivision four of such section, that such information is necessary for\nthe court to determine whether to make or continue an appointment\npursuant to this article;\n  (iv) reports for such person or person from the statewide computerized\nregistry of orders of protection established and maintained pursuant to\nsection two hundred twenty-one-a of the executive law; and\n  (v) related decisions in court proceedings initiated pursuant to\narticle ten of the family court act and related warrants issued under\nthe family court act.\n  2. The court shall obtain and consider records and reports specified\nin paragraph one of this subdivision between the time the judge executes\nthe order to show cause and the hearing date of the order to show cause\nif a guardian or guardians are proposed in the petition or, as soon as a\nguardian or guardians are proposed by a party to the proceeding or\nnominated by the person alleged to be incapacitated, during a proceeding\nunder this article.\n  3. Upon consideration of all factors bearing on the best interests of\nthe incapacitated person including consideration of all relevant factors\nin section seven hundred fifty-three of the correction law, the records\nand reports specified in paragraph one of this subdivision, and the\ncourt evaluator's report thereon, and after notifying counsel involved\nin the proceeding, or in the event of a self-represented party notifying\nsuch party, the court may appoint, refuse to appoint or revoke the\nappointment of any person as guardian pursuant to this article.\n  4. Where the court requests a criminal history record for a person\npursuant to this section, the court shall provide the subject of the\nrequest with a copy of his or her criminal history record, if any, a\nreasonable time before consideration of such record under this\nsubdivision and inform such person of his or her right to seek\ncorrection of any incorrect information contained in such record\npursuant to regulations and procedures established by the division of\ncriminal justice services.\n