2019 New York Laws
MHY - Mental Hygiene
Title E - General Provisions
Article 81 - Proceedings for Appointment of a Guardian for Personal Needs or Property Management
81.10 - Counsel.

§ 81.10 Counsel.
  (a) Any person for whom relief under this article is sought shall have
the  right to choose and engage legal counsel of the person's choice. In
such event, any  attorney  appointed  pursuant  to  this  section  shall
continue  his or her duties until the court has determined that retained
counsel  has  been  chosen  freely  and  independently  by  the  alleged
incapacitated person.
  (b)  If  the  person alleged to be incapacitated is not represented by
counsel at the time of the issuance of the  order  to  show  cause,  the
court  evaluator  shall  assist the court in accordance with subdivision
(c) of section 81.09 of this  article  in  determining  whether  counsel
should be appointed.
  (c)   The  court  shall  appoint  counsel  in  any  of  the  following
circumstances  unless  the  court  is   satisfied   that   the   alleged
incapacitated  person  is  represented  by  counsel  of  his  or her own
choosing:
  1. the person alleged to be incapacitated requests counsel;
  2. the person alleged  to  be  incapacitated  wishes  to  contest  the
petition;
  3.  the  person  alleged  to  be incapacitated does not consent to the
authority requested in the petition to move the  person  alleged  to  be
incapacitated from where that person presently resides to a nursing home
or  other residential facility as those terms are defined in section two
thousand eight hundred one of the public health law,  or  other  similar
facility;
  4. if the petition alleges that the person is in need of major medical
or  dental treatment and the person alleged to be incapacitated does not
consent;
  5. the petition requests  the  appointment  of  a  temporary  guardian
pursuant to section 81.23 of this article;
  6. the court determines that a possible conflict may exist between the
court  evaluator's  role and the advocacy needs of the person alleged to
be incapacitated;
  7. if at any time the court determines  that  appointment  of  counsel
would be helpful to the resolution of the matter.
  (d)  If  the  person refuses the assistance of counsel, the court may,
nevertheless, appoint counsel if the court is  not  satisfied  that  the
person   is  capable  of  making  an  informed  decision  regarding  the
appointment of counsel.
  (e) The court may appoint as counsel the mental hygiene legal  service
in the judicial department where the residence is located.
  (f)  The  court  shall  determine  the reasonable compensation for the
mental hygiene legal service or any attorney appointed pursuant to  this
section. The person alleged to be incapacitated shall be liable for such
compensation  unless the court is satisfied that the person is indigent.
If the petition is dismissed, the court may  in  its  discretion  direct
that  petitioner  pay  such  compensation  for  the person alleged to be
incapacitated. When the person alleged to be incapacitated  dies  before
the  determination  is  made  in  the  proceeding,  the  court may award
reasonable compensation to the  mental  hygiene  legal  service  or  any
attorney  appointed  pursuant to this section, payable by the petitioner
or the estate of the decedent or by both  in  such  proportions  as  the
court may deem just.
  (g)  If  the  court appoints counsel under this section, the court may
dispense with the appointment of a court  evaluator  or  may  vacate  or
suspend the appointment of a previously appointed court evaluator.