2023 New York Laws › MHY - Mental Hygiene › Title E - General Provisions › Article 81 - Proceedings for Appointment of a Guardian for Personal Needs or Property Management › 81.19 - Eligibility as Guardian.

§ 81.19 Eligibility as guardian.
(a)  1. Any individual over eighteen years of age, or any parent under
eighteen years of age, who is found by  the  court  to  be  suitable  to
exercise  the powers necessary to assist the incapacitated person may be
appointed as guardian, including but not  limited  to  a  spouse,  adult
child, parent, or sibling.
2.  A  not-for-profit corporation organized to act in such capacity, a
social services official, or public agency authorized  to  act  in  such
capacity  which  has  a  concern  for  the incapacitated person, and any
community guardian program operating pursuant to the provisions of title
three of article nine-B of the social services law which is found by the
court to be suitable to perform  the  duties  necessary  to  assist  the
incapacitated  person  may  be  appointed  as  guardian, provided that a
community guardian program shall be appointed as guardian only  where  a
special  proceeding for the appointment of a guardian under this article
has been commenced by a social services official with whom such  program
was contracted.
3.  A  corporation, except that no corporation (other than as provided
in paragraph two of this subdivision) may be authorized to exercise  the
powers necessary to assist the incapacitated person with personal needs.
(b)  The  court  shall  appoint  a person nominated as the guardian in
accordance with the provisions of section 81.17 of this  article  unless
the  court  determines the nominee is unfit or the alleged incapacitated
person indicates that he or she no  longer  wishes  the  nominee  to  be
appointed.
(c) In the absence of a nomination in accordance with section 81.17 of
this  article,  the court shall appoint a person nominated by the person
alleged to be incapacitated orally or by conduct during the  hearing  or
trial  unless  the court determines for good cause that such appointment
is not appropriate.
(d) In making any appointment  under  this  article  the  court  shall
consider:
1.  any  appointment  or  delegation  made by the person alleged to be
incapacitated in accordance  with  the  provisions  of  section  5-1501,
5-1601  or  5-1602  of  the  general  obligations  law  and sections two
thousand  nine  hundred  sixty-five  and  two  thousand   nine   hundred
eighty-one of the public health law;
2.  the  social  relationship between the incapacitated person and the
person, if any,  proposed  as  guardian,  and  the  social  relationship
between  the  incapacitated  person and other persons concerned with the
welfare of the incapacitated person;
3. the care and services being provided to the incapacitated person at
the time of the proceeding;
4. the powers which the guardian will exercise;
5. the educational, professional and business experience  relevant  to
the nature of the services sought to be provided;
6. the nature of the financial resources involved;
7. the unique requirements of the incapacitated person; and
8.  any  conflicts of interest between the person proposed as guardian
and the incapacitated person.
(e) Unless the court finds that no  other  person  or  corporation  is
available  or  willing to act as guardian, or to provide needed services
for the incapacitated person, the following persons or corporations  may
not serve as guardian:
1.  one  whose only interest in the person alleged to be incapacitated
is that of a creditor;
2. one, other than a relative, who is a provider, or the employee of a
provider, of health care, day care, educational, or residential services
to the incapacitated person, whether direct or indirect.
(f) Mental hygiene legal service may not serve as a guardian.
(g)  1.  In  making  an  appointment or considering a revocation of an
appointment under this article, the court also may obtain and  consider,
and may authorize a court evaluator to review the same and report to the
court  concerning,  any  of  the  following  information  regarding  the
guardian or proposed guardian, and, if the incapacitated person  resides
or  will  reside  with  such  guardian  or proposed guardian, any person
eighteen years or older residing in the guardian or proposed  guardian's
household:
(i)  a criminal history record check of such person or persons; and in
furtherance thereof, the court shall be authorized to: (1) obtain a  set
of  such person's fingerprints; (2) direct that the division of criminal
justice services promptly  provide  to  the  court  a  criminal  history
record,  if  any,  with  respect to such person or a statement that such
person has no criminal record; and (3) direct  the  submission  of  such
person's  fingerprints  by  the division of criminal justice services to
the federal  bureau  of  investigation  for  purposes  of  a  nationwide
criminal history record check pursuant to and consistent with public law
92-544  to  determine if such person has a criminal history in any state
or federal jurisdiction;
(ii) reports for such person or persons from the sex offender registry
established and maintained pursuant to section one hundred sixty-eight-b
of the correction law;
(iii) indicated reports for such person or persons from the  statewide
central  register  of  child  abuse  and  maltreatment  established  and
maintained pursuant to section four hundred  twenty-two  of  the  social
services  law,  upon  a finding by the court, pursuant to paragraph e of
subdivision four of such section, that such information is necessary for
the court to determine  whether  to  make  or  continue  an  appointment
pursuant to this article;
(iv) reports for such person or person from the statewide computerized
registry  of orders of protection established and maintained pursuant to
section two hundred twenty-one-a of the executive law; and
(v) related decisions  in  court  proceedings  initiated  pursuant  to
article  ten  of  the family court act and related warrants issued under
the family court act.
2. The court shall obtain and consider records and  reports  specified
in paragraph one of this subdivision between the time the judge executes
the  order to show cause and the hearing date of the order to show cause
if a guardian or guardians are proposed in the petition or, as soon as a
guardian or guardians are proposed by  a  party  to  the  proceeding  or
nominated by the person alleged to be incapacitated, during a proceeding
under this article.
3.  Upon consideration of all factors bearing on the best interests of
the incapacitated person including consideration of all relevant factors
in section seven hundred fifty-three of the correction law, the  records
and  reports  specified  in  paragraph  one of this subdivision, and the
court evaluator's report thereon, and after notifying  counsel  involved
in the proceeding, or in the event of a self-represented party notifying
such  party,  the  court  may  appoint,  refuse to appoint or revoke the
appointment of any person as guardian pursuant to this article.
4. Where the court requests a criminal history  record  for  a  person
pursuant  to  this  section,  the court shall provide the subject of the
request with a copy of his or her criminal history  record,  if  any,  a
reasonable   time   before  consideration  of  such  record  under  this

subdivision and  inform  such  person  of  his  or  her  right  to  seek
correction  of  any  incorrect  information  contained  in  such  record
pursuant to regulations and procedures established by  the  division  of
criminal justice services.