N.Y. Mental Hygiene Law 81.16 – Dispositional alternatives
§ 81.16 Dispositional alternatives.
Terms Used In N.Y. Mental Hygiene Law 81.16
- Contract: A legal written agreement that becomes binding when signed.
- Decedent: A deceased person.
- Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
- facility: means a facility, hospital, or school, or an alcoholism facility in this state as such terms are defined in section 1. See N.Y. Mental Hygiene Law 81.03
- functional level: means the ability to provide for personal needs and/or the ability with respect to property management. See N.Y. Mental Hygiene Law 81.03
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- guardian: means a person who is eighteen years of age or older, a corporation, or a public agency, including a local department of social services, appointed in accordance with terms of this article by the supreme court, the surrogate's court, or the county court to act on behalf of an incapacitated person in providing for personal needs and/or for property management. See N.Y. Mental Hygiene Law 81.03
- least restrictive form of intervention: means that the powers granted by the court to the guardian with respect to the incapacitated person represent only those powers which are necessary to provide for that person's personal needs and/or property management and which are consistent with affording that person the greatest amount of independence and self-determination in light of that person's understanding and appreciation of the nature and consequences of his or her functional limitations. See N.Y. Mental Hygiene Law 81.03
- personal needs: means needs such as, but not limited to, food, clothing, shelter, health care, and safety. See N.Y. Mental Hygiene Law 81.03
- property management: means taking actions to obtain, administer, protect, and dispose of real and personal property, intangible property, business property, benefits, and income and to deal with financial affairs. See N.Y. Mental Hygiene Law 81.03
(a) Dismissal of the petition.
If the person alleged to be incapacitated under this article is found not to be incapacitated, the court shall dismiss the petition.
(b) Protective arrangements and single transactions. If the person alleged to be incapacitated is found to be incapacitated, the court without appointing a guardian, may authorize, direct, or ratify any transaction or series of transactions necessary to achieve any security, service, or care arrangement meeting the foreseeable needs of the incapacitated person, or may authorize, direct, or ratify any contract, trust, or other transaction relating to the incapacitated person's property and financial affairs if the court determines that the transaction is necessary as a means of providing for personal needs and/or property management for the alleged incapacitated person. Before approving a protective arrangement or other transaction under this subdivision, the court shall consider the interests of dependents and creditors of the incapacitated person, and in view of the person's functional level, whether the person needs the continuing protection of a guardian. The court may appoint a special guardian to assist in the accomplishment of any protective arrangement or other transaction authorized under this subdivision. The special guardian shall have the authority conferred by the order of appointment, shall report to the court on all matters done pursuant to the order of appointment and shall serve until discharged by order of the court. The court may approve a reasonable compensation for the special guardian; however, if the court finds that the special 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 special guardian.
(c) Appointing a guardian.
1. If the person alleged to be incapacitated is found to have agreed to the appointment of a guardian and the court determines that the appointment of a guardian is necessary, the order of the court shall be designed to accomplish the least restrictive form of intervention by appointing a guardian with powers limited to those which the court has found necessary to assist the person in providing for personal needs and/or property management.
2. If the person alleged to be incapacitated is found to be incapacitated and the court determines that the appointment of a guardian is necessary, the order of the court shall be designed to accomplish the least restrictive form of intervention by appointing a guardian with powers limited to those which the court has found necessary to assist the incapacitated person in providing for personal needs and/or property management.
3. The order of appointment shall identify all persons entitled to notice of all further proceedings.
4. The order of appointment shall identify the persons entitled to receive notice of the incapacitated person's death, the intended disposition of the remains of the decedent, funeral arrangements and final resting place when that information is known or can be reasonably ascertained by the guardian.
5. The order of appointment may identify the person or persons entitled to notice of the incapacitated person's transfer to a medical facility.
6. The order of appointment may identify the persons entitled to visit the incapacitated person, if they so choose. However, the identification of such persons in the order shall in no way limit the persons entitled to visit the incapacitated person.
(d) The court shall direct that a judgment be entered determining the rights of the parties.
(e) The order and judgment must be entered and served within ten days of the signing of the order. A copy of the order and judgment shall be personally served upon and explained to the person who is the subject of the proceedings in a manner which the person can reasonably be expected to understand by the court evaluator, or by counsel for the person, or by the guardian.
(f) When a petition is granted, or where the court otherwise deems it appropriate, the court may award reasonable compensation for the attorney for the petitioner, including the attorney general and the attorney for a local department of social services.