2023 New York Laws › SOS - Social Services › Article 9-B - Adult Protective Services › Title 2 - Short-Term Involuntary Protective Services Orders › 473-A - Short-Term Involuntary Protective Services Orders.

§   473-a.  Short-term  involuntary  protective  services  orders.  1.
Definitions. When used in this section unless otherwise expressly stated
or  unless  the  context  or  subject  matter   requires   a   different
interpretation:
(a) "endangered adult" means a person, age eighteen or over who is:
(i)  in a situation or condition which poses an imminent risk of death
or imminent risk of serious physical harm to him or her, and
(ii) lacking capacity to comprehend the  nature  and  consequences  of
remaining in that situation or condition, provided that:
a.  refusal  by  the  adult to accept protective services shall not in
itself be sufficient evidence of such lack of capacity; and
b. mental illness shall not in itself be sufficient evidence  of  such
lack of capacity.
(b)  "short-term involuntary protective services" means those services
set forth in section four hundred seventy-three of  this  article  which
are  provided  involuntarily  pursuant  to the procedures established by
this title.
(c)  "petitioner"  means  a  social  services  official  initiating  a
proceeding pursuant to this title.
(d) "respondent" means an allegedly endangered adult.
2.  Jurisdiction.  The  supreme  court and the county court shall each
have jurisdiction over the special proceeding commenced pursuant to  the
provisions of this title.
3.  Venue.  A  petition  for  the  provision of short-term involuntary
protective services shall be made to:
(a) a term of the supreme court:
(i) held in the county in which the allegedly endangered adult resides
or is found; or
(ii) held in a county, within the same judicial district, adjacent  to
the  county in which the allegedly endangered adult resides or is found;
or
(b) the county court:
(i) in the county in which the allegedly endangered adult  resides  or
is found; or
(ii)  in  a  county  adjacent  to  the  county  in which the allegedly
endangered adult resides or is found.
4. Petition. (a) A special proceeding to obtain an  order  authorizing
the  provision of short-term involuntary protective services may only be
initiated by a social services official.
(b) The petition shall state, insofar as the facts can be  ascertained
with reasonable diligence:
(i) the name, age and physical description of the allegedly endangered
adult; and
(ii)  the  address  or  other  location where the allegedly endangered
adult can be found.
(c) The petition shall state facts showing:
(i) that the  adult  who  is  the  subject  of  this  petition  is  an
endangered  adult as defined in paragraph (a) of subdivision one of this
section;
(ii)  the  specific   short-term   involuntary   protective   services
petitioned  for,  how  such  services  would  remedy  the  situation  or
condition which poses an imminent risk of  death  or  imminent  risk  of
serious  physical  harm  to the allegedly endangered adult, and why such
services are not overbroad as to extent or duration;
(iii)  that  the  short-term  involuntary  protective  services  being
applied  for are necessitated by the situation or condition described in
paragraph (a) of subdivision one of this section;
(iv) that other voluntary protective services have been tried and have
failed to remedy the situation,  and  that  a  future,  voluntary,  less
restrictive  alternative  would  not  be  appropriate  or  would  not be
available;
(v)  if a change in the allegedly endangered adult's physical location
is being  applied  for,  that  remedy  of  the  dangerous  situation  or
condition  described in paragraph (a) of subdivision one of this section
is not appropriate in existing physical surroundings  of  the  allegedly
endangered adult;
(vi)  any  inconsistency  known  to  petitioner  between  the proposed
short-term involuntary protective services and the allegedly  endangered
adult's religious belief;
(vii)  that  if  it  reasonably  appears that the allegedly endangered
adult does not understand the English language, that reasonable  efforts
have  been  made to communicate with the allegedly endangered adult in a
language he or she understands;
(viii) that  no  prior  application  has  been  made  for  the  relief
requested  or  for  any similar relief, or if prior application has been
made, the determination thereof, and the new facts, if  any,  that  were
not previously shown which warrant a renewal of the application.
(d)  The  petition  shall  be  verified. Any allegations which are not
based upon personal knowledge shall be supported by affidavits  provided
by  a  person or persons having such knowledge. Such affidavits shall be
attached to the petition.
5. Commencement of proceedings. (a) A special proceeding to obtain  an
order  authorizing  the  provision  of short-term involuntary protective
services shall be commenced by an order to show cause, the petition  and
supporting affidavits, if any.
(b) The order to show cause shall set forth:
(i) in bold type, on its face, the following:
WARNING IF YOU DO NOT APPEAR IN COURT YOUR LIFE AND LIBERTY MAY BE
SERIOUSLY AFFECTED. FOR FREE INFORMATION CONCERNING YOUR LEGAL RIGHTS
CALL OR VISIT
(ii)  the  protective  services  to  be  provided  if  the petition is
granted;
(iii) the date, place and time of the hearing to determine whether the
petition is to be granted;
(iv) that the respondent is entitled to counsel at all stages  of  the
proceeding,  that upon granting the order to show cause, the court shall
assign counsel to assist the respondent, and that respondent is free  at
any  time  to  discharge  the  counsel  assigned by the court. The name,
address and telephone number of the assigned counsel shall  be  inserted
at  the  end  of  the  warning  referred  to in subparagraph (i) of this
paragraph;
(v) that if the respondent or retained counsel does not appear at  the
hearing  to  determine  whether the petition is to be granted, the court
will appoint a guardian ad litem;
(vi) that if the respondent discharges the assigned counsel  prior  to
the  hearing to determine if the petition is to be granted, such counsel
shall report this fact to the court no later than  the  commencement  of
the  hearing, and shall appear at the hearing, unless otherwise relieved
by the court. In the event that neither the respondent nor his  retained
counsel  appears  at  the  hearing,  the  court  may  appoint the person
previously assigned as counsel to act as the guardian ad litem; and
(vii) that a copy of the  order  to  show  cause,  the  petition,  and
supporting affidavits, if any, shall be served upon the respondent.
(c)  Petitioner shall cause the order to show cause, the petition, and
supporting affidavits, if any, to be delivered to the  counsel  assigned
by the court.
(d)   The  order  to  show  cause  shall  be  made  returnable  within
forty-eight hours following its issuance, unless such  forty-eight  hour
period ends on a day in which the court is not in session, in which case
the  return  date  shall be the first business day following issuance of
the order to show cause.
6. Service. (a) Service of the order to show cause, the petition,  and
supporting  affidavits, if any, shall be made upon the respondent by any
of the methods permitted by section three hundred  eight  of  the  civil
practice  law  and  rules. Notwithstanding any other provision of law to
the contrary, Saturday and Sunday service is valid.
(b) The respondent shall be authorized to answer either orally  or  in
writing.
7.  Hearing.  (a) Upon the return date designated in the order to show
cause issued pursuant to subdivision five  of  this  section  a  hearing
shall be held forthwith.
(b)  The allegedly endangered adult shall be entitled to be present at
the hearing.
(c) Adjournments shall be permitted only  for  good  cause  shown.  In
granting  adjournments  the  court  shall  consider  the need to provide
short-term involuntary services expeditiously.
(d) At the conclusion of the hearing the court  shall  issue  for  the
record a statement of its findings of fact and conclusions of law.
8.  Preference.  The special proceeding authorized by this title shall
have preference over all other  causes  in  all  courts  of  appropriate
jurisdiction.
9.  Findings.  After  a  hearing,  the  court  must  find, in order to
authorize the provision of short-term involuntary  protective  services,
that  all  of  the material allegations as specified in paragraph (c) of
subdivision four of this section have been admitted or proven  by  clear
and convincing proof.
10.  Judgment.  (a)  The  court,  upon making the findings required by
subdivision  nine  herein,  shall  direct  the  entry  of   a   judgment
authorizing  the provision of short-term involuntary protective services
to an endangered adult.
(b) A judgment authorizing short-term involuntary protective  services
to be provided to an endangered adult:
(i)  shall prescribe those specific protective services, authorized by
section four hundred seventy-three of this  article,  which  are  to  be
provided and what person or persons are authorized or ordered to provide
them; and
(ii)  shall  not  provide for any forcible entry unless the persons so
entering are accompanied by a peace  officer,  acting  pursuant  to  his
special  duties,  or  a police officer, who is a member of an authorized
police department or force or of a sheriff's department;
(iii) shall require persons acting under subparagraphs (i) and (ii) of
this paragraph to submit a written report to the court within  one  week
following the commencement of the ordered protective services.
(c)  The  judgment  may  order  any  other  public  or law enforcement
official to render such assistance and cooperation as  shall  be  within
his  legal  authority, as may be required to further the objects of this
title.
(d) The judgment shall not order removal to a hospital, as  that  term
is defined in section 1.03 of the mental hygiene law.
(e)  Issuance  of the judgment shall not be evidence of the competency
or incompetency of the endangered adult.
(f) No order issued pursuant to this title shall extend for more  than
seventy-two  hours.  An  original  order  may  be renewed once for up to
another seventy-two hour period upon showing by the  petitioner  to  the
court that continuation is necessary to remedy the original situation or
condition. No further renewals shall be permitted.
(g)  In  no event shall the short-term involuntary services authorized
to be provided to an endangered adult by the judgment  be  broader  than
those  which  are  necessary  to remedy the situation or condition which
poses an imminent risk of death or imminent  risk  of  serious  physical
harm to the endangered adult.
(h) Notice of the judgment rendered by the court shall be given to the
respondent  personally,  or  if  personal  service  is  not  possible in
whatever other fashion the court shall prescribe.
11. Appeals. Appeals arising from the issuance of  judgments  pursuant
to the provisions of this title shall be expedited.
12.  The  assigned  counsel and the guardian ad litem appointed by the
court pursuant to this title shall  be  reimbursed  for  their  services
pursuant to section thirty-five of the judiciary law.
13. Nothing in this title precludes the simultaneous commencement of a
proceeding  under  this title and a proceeding under section 9.43 of the
mental hygiene law, or  a  proceeding  under  article  seventy-seven  or
article  seventy-eight  of  such law. A pending proceeding under section
9.43 of the mental hygiene law or under article seventy-seven or article
seventy-eight of the mental hygiene law does not  preclude  commencement
of a proceeding under this title.
14.  No  existing  right  or  remedy  of  any character shall be lost,
impaired or affected by reason of this title.