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 › 81.23 - 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.