MHL 81 Volume 1

Question 1

81.01 Legislative findings and purpose

Guardianship is one of the least restrictive personal or property management systems and affords the person greater participation and self-determination than does conservatorship.

Answer 1

81.01 Legislative findings and purpose

Guardianship is one of the least restrictive personal or property management systems and affords the person greater participation and self-determination than does conservatorship.

Question 2

81.02 Power to appoint a guardian of the person and/or property, standard for appointment

Court may appoint a guardian for a person if the appointment is necessary to provide for __________ of that person, and that person agrees to the appointment, or that the person is incapacitated

Answer 2

personal needs

Question 3

81.02 Power to appoint a guardian of the person and/or property, standard for appointment

The determination of incapacity shall be based on___________________

Answer 3

clear and convincing evidence.

Question 4

81.03 Definitions
A _________________, ___________ , etc., may be a guardian, or a person ________ or older.

Answer 4

corporation, public agency……….18

Question 5

81.04 Jurisdiction

The courts that have jurisdiction under this MHL Article 81 are the___________ (within the judicial district) and ________ courts (in county of residence of person).

Courts have jurisdiction for both residents of the NYS or non-resident present in NYS.

The _______________ has the power under this of guardianship

Answer 5

supreme courts………. county …surrogate’s court

Question 6

81.05 Venue
If the person alleged to be incapacitated is being cared for as a resident in a facility, the residence of that person shall be deemed to be in the __________ where the facility is located.
(a) If the person alleged to be incapacitated is not present in the state, or the residence of such person cannot be ascertained, the residence shall be deemed to be in the county where all or some of the person’s ______ is located.
(b) After the appointment of a guardian, any proceeding to modify a prior order shall be brought in the supreme court, county court, or surrogate’s court which granted the prior order.

Answer 6

county…..property

Question 7

81.06 Who may commence a proceeding
A proceeding under this article shall be commenced by the filing of the ____________ with the court.

Answer 7

petition

Question 8

81.07 Notice
Upon the filing of the petition (MHL 81), the court shall set the date on which the order to show cause is heard no more than _________ days from the date of the signing of the order to show cause

Answer 8

28

Question 9

81.07 Notice

• (b) The court shall require the _____ to be served together with a copy of the petition and any supporting papers upon
• • The alleged incapacitated person,
• • the court evaluator, and
• • counsel for the alleged incapacitated person
• The order to show cause shall be written in large type, in plain language, and in a language other than English if necessary to inform the person alleged to be incapacitated.
• The order to show cause and a copy of the petition shall be personally delivered to the person alleged to be incapacitated not less than _________ days prior to the hearing date of the order to show cause.

Answer 9

order to show cause 14

Question 10

81.08 Petition

(a) The petition shall be ___________ under oath

Answer 10

verified

Question 11

81.09 Appointment of a court evaluator

(a) The court shall appoint a __________ at the time of the issuance of the order to show cause.
(b) The name of the court evaluator shall be drawn from a list maintained by the office of court administration.
(e) The court evaluator shall have the authority to take the steps necessary to preserve the property of the person alleged to be incapacitated pending the hearing in the event the property is in danger of waste, misappropriation, or loss.

Answer 11

court evaluator

Question 12

81.10 Counsel

Generally, a person is entitled to free counsel if he does not have resources for counsel.

• Also, court shall appoint counsel in ___________ , and may appoint counsel even if a person ___________ counsel.
• If court appoints counsel, court (may/must) dispense with appointment of court evaluator.

Answer 12

limited circumstances………refuses

Question 13

81.12 Burden and Quantum of Proof

A determination that a person is incapacitated under the provisions of this article must be based on _______________

The court may, for good cause shown, waive the ________________ (MHL: appointment of guardian).

Answer 13

clear and convincing evidence……. rules of evidence

Question 14

81.13 Timing of Hearing

Unless the court, for good cause shown, orders otherwise, a proceeding under this article is entitled to a ___________ over all other causes in the court.

Answer 14

preference

Question 15

81.13 Timing of Hearing

• Unless the court, for good cause shown, orders otherwise, the hearing or trial (guardianship) shall be conducted within _______ days from the date of the signing of the order to show cause. - A decision (guardianship) shall be rendered within ______ days after the hearing, unless for good cause shown, the court extends the time period for rendering the decision.
• The commission (guardianship) shall be issued to the guardian within _____________ days after the decision is rendered.

Answer 15

28………7………… 15

Question 16

81.14 Record of the proceedings

• A record of the proceedings (guardianship) shall be made in all cases.
• The court ____________ exclude the general public from a proceeding under this article except upon findings of good cause.

Answer 16

shall not

Question 17

81.15 Findings

The order appointing a guardian shall state the ______ of the appointment and the least form of intervention.

Answer 17

duration

Question 18

81.16 Dispositional alternatives

The order and judgment must be entered and served within ________ days of the signing of the order.

Answer 18

10

Question 19

81.16 Dispositional alternatives

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.

Answer 19

81.16 Dispositional alternatives

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.

Question 20

81.17 Nomination of guardian

In a petition, the person alleged to be incapacitated may nominate a guardian.

Answer 20

81.17 Nomination of guardian

In a petition, the person alleged to be incapacitated may nominate a guardian.

Question 21

81.18 Foreign Guardian for a person who is not present in the state
An existing _______ guardian may in some cases be appointed as a guardian for property in this state if the incapacitated person is not present in the state.

Answer 21

foreign

Question 22

81.19 Eligibility as guardian
Any individual over 18 years of age, or any parent under 18 years of age, who is found by the court to be suitable may be appointed as guardian of an incapacitated person.
______________________ may not serve as a guardian.

Answer 22

Mental hygiene legal service

Question 23

81.20 Duties of guardian
A guardian shall visit the incapacitated person not less than _________ times a year or more frequently as specified in the court order.

Answer 23

4 (FOUR)

Question 24

81.21 Duties of guardian; property management

The court may authorize the guardian to manage the property and financial affairs of the incapacitated persons

Answer 24

81.21 Duties of guardian; property management

The court may authorize the guardian to manage the property and financial affairs of the incapacitated persons

Question 25

81.22 Powers of guardian; personal needs

A guardian cannot ___________ to the voluntary formal or informal admission of the incapacitated person to a mental hygiene facility.

Answer 25

consent

Question 26

81.23 Provisional remedies

The court may issue a commission of temporary guardianship

(a) A temporary guardian may be appointed for a period not to extend beyond the date of the issuance of the commission to a guardian appointed pursuant to this article

Answer 26

81.23 Provisional remedies

The court may issue a commission of temporary guardianship

(a) A temporary guardian may be appointed for a period not to extend beyond the date of the issuance of the commission to a guardian appointed pursuant to this article

Question 27

81.23 Provisional remedies

An injunction or temporary restraining order may, upon the application for the appointment of a guardian, in the discretion of the court, be continued for ________ days after the appointment of a guardian.

Answer 27

10