2006 New York Code - 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.