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 › 81.02 - Power to Appoint a Guardian of the Person And/or Property; Standard for Appointment.

§ 81.02 Power  to  appoint  a  guardian  of  the person and/or property;
standard for appointment.
(a) The court may appoint  a  guardian  for  a  person  if  the  court
determines:
1. that the appointment is necessary to provide for the personal needs
of  that  person,  including  food,  clothing,  shelter, health care, or
safety and/or to manage the  property  and  financial  affairs  of  that
person; and
2.  that  the  person agrees to the appointment, or that the person is
incapacitated as defined in subdivision (b) of this section. In deciding
whether the appointment is  necessary,  the  court  shall  consider  the
report  of  the  court  evaluator,  as  required  in  paragraph  five of
subdivision (c) of section 81.09 of this article,  and  the  sufficiency
and reliability of available resources, as defined in subdivision (e) of
section 81.03 of this article, to provide for personal needs or property
management without the appointment of a guardian. Any guardian appointed
under  this  article  shall  be  granted  only  those  powers  which are
necessary to provide for personal needs and/or  property  management  of
the  incapacitated  person  in  such  a  manner  as  appropriate  to the
individual and which shall constitute  the  least  restrictive  form  of
intervention,  as  defined  in  subdivision (d) of section 81.03 of this
article.
(b) The determination of  incapacity  shall  be  based  on  clear  and
convincing  evidence  and shall consist of a determination that a person
is likely to suffer harm because:
1. the person is unable to provide for personal needs and/or  property
management; and
2.  the  person cannot adequately understand and appreciate the nature
and consequences of such inability.
(c) In reaching  its  determination,  the  court  shall  give  primary
consideration  to the functional level and functional limitations of the
person. Such consideration shall include an assessment of that person's:
1. management of  the  activities  of  daily  living,  as  defined  in
subdivision (h) of section 81.03 of this article;
2.  understanding  and  appreciation of the nature and consequences of
any inability to manage the activities of daily living;
3. preferences,  wishes,  and  values  with  regard  to  managing  the
activities of daily living; and
4.  the  nature  and  extent  of  the  person's property and financial
affairs and his or her ability to manage them.
It shall also include an assessment of (i) the extent of  the  demands
placed  on  the person by that person's personal needs and by the nature
and extent of that person's property and  financial  affairs;  (ii)  any
physical  illness  and  the  prognosis of such illness; (iii) any mental
disability, as that term is defined in section  1.03  of  this  chapter,
alcoholism or substance dependence as those terms are defined in section
19.03  of this chapter, and the prognosis of such disability, alcoholism
or substance dependence; and (iv) any medications with which the  person
is  being  treated  and their effect on the person's behavior, cognition
and judgment.
(d) In addition, the court shall consider all other relevant facts and
circumstances regarding the person's:
1. functional level; and
2. understanding and appreciation of the nature  and  consequences  of
his or her functional limitations.