2006 New York Code - 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.