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(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,

other transaction relating to the incapacitated person's property and financial affairs if the court determines that the transaction is necessary

means of providing for personal needs and/or property management for the alleged incapacitated person. Before approving 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.

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

guardian is necessary, the order of the court shall be designed to accomplish the least restrictive form of intervention by appointing 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

guardian is necessary, the order of the court shall be designed to accomplish the least restrictive form of intervention by appointing

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.

(d) The court shall direct that a judgment be entered determining the rights of the parties.

(e) A copy of the order and judgment shall be personally served upon and read to the person who is the subject of the

proceedings by the court evaluator or by counsel for the person.

(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. § 81.17 Nomination of guardian. In the petition,

in written instrument duly executed, 8Cknowledged, and filed in the proceeding before the

appointment of guardian, the person alleged to be incapacitated may nominate guardian. § 81.18 Foreign guardian for a person not present in the state.

Where the person alleged to be incapacitated is not presents the state and a guardian, by whatever name designated, has been duly appointed pursuant to the laws of any other state, territory, or country where the person alleged to be incapacitated resides to assist such property management, the court in its discretion, may make an order appointing the foreign guardian as a guardian under this article with powers with respect to property management within this state on the foreign guardian's giving such security as the court deems proper. $ 81.19 Eligibility as guardian.

(a) 1. Any individual over eighteen years of age, or any parent under eighteen years of age, who is found by the court to be suitable to exercise the powers necessary to assist the incapacitated person may be oppointed as guardian, including but not limited to a spouse, adult child, parent, or sibling.

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2. A not-for-profit corporation organized to act in such capacity, a social services official, or public agency authorized to act in capacity which has a concern for the incapacitated person, and any community guardian program operating pursuant to the

provisions

of title three of article nine-B of the social services law which is found by the court to be suitable to perform the duties necessary to assist the incapacitated person may be appointed as guardian, provided that a community guardian program shall be appointed as guardian only where special proceeding for the appointment of a guardian under this article has been commenced by a social services official with whom such program was contracted.

3. A corporation except that no corporation other than as provided in
paragraph two of this subdivision may be authorized to exercise the pow-
ers necessary to assist the incapacitated person with personal needs.

(b) The court shall appoint a person noininated as the guardian in ac-
cordance with the provisions of section 81.17 of this article unless the
court determines the nominee is unfit or the alleged incapacitated per-
son indicates that he she longer wishes the nominee to
appointed.

(c) In the absence of a nomination in accordance with section 81.17 of
this article, the court shall, appoint a person nominated by the person
alleged to be incapacitated orally or by conduct during the hearing or
trial unless the court determines for good cause that such appointment
is not appropriate.

(d) In making any appointment under this article the court shall
consider:

1. any appointment or delegation made by the person alleged to be in-
capacitated in accordance with the provisions of section 5-1501, 5-1601

5-1602 of the general obligations law and sections two thousand nine
hundred sixty-five and two thousand nine hundred eighty-one of the pub-
lic health law;

2. the social relationship between the incapacitated person and the person, if any, proposed as guardian, and

the

social relationship
between the incapacitated person and other persons concerned with the
welfare of the incapacitated person;

3. the care and services being provided to the incapacitated person at
the time of the proceeding;
4. the powers which the guardian will exercise;
5.

the educational, professional and business experience relevant to
the nature of the services sought to be provided;
6. the nature of the financial resources involved;
7. the unique requirements of the incapacitated person; and
8. any conflicts of interest between the person proposed as guardian
and the incapacitated person.

(e) Unless the court finds that no other person or corporation is
available or willing to act as guardian, or to provide

needed services for the incapacitated person, the following persons or corporations may not serve as guardian:

1. whose only interest in the person alleged to be incapacitated
is that of a creditor;

2. one, other than a relative, who is a provider, or the employee of a
provider, of health care, day care, educational, or residential services
to the incapacitated person, whether direct or indirect.
§ 81.20 Duties of guardian.

(a) Duties of guardian generally.
1.

a guardian shall exercise only those powers that the guardian is
authorized to exercise by court order;

2; a guardian shall exercise the utmost care and diligence when acting
on behalf of the incapacitated person;
3.

a guardian shall exhibit the utmost degree of trust, loyalty and
fidelity in relation to the incapacitated person;

à guardian shall file an initial and annual reports in accordance
with sections 81.30 and 81.31 of this article;
5.

a guardian shall visit the incapacitated person not less than four
times a year or more frequently as specified in the court order;
6.

a guardian who is given authority with respect to property manage-
ment for the incapacitated person shall:

(i) afford the incapacitated person the greatest amount of indepen-
dence and self-determination with

respect to property management in
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light of that person's functional level, understanding, and appreciation of his or her functional limitations, and personal wishes, preferences and desires with regard to managing the activities of daily living;

(ii) preserve, protect, and account for such property and financial resources faithfully;

(iii) determine whether the incapacitated person has executed a will, determine the location of any will, and the appropriate persons to be notified in the event of the death of the incapacitated person and, in the event of the death of the incapacitated person, notify

those per sons;

(iv) the property and financial resources and income available therefrom to maintain and support the incapacitated person, and to maintain and support those persons dependent upon the incapacitated person;

(v) at the termination of the appointment, deliver such property to the person legally entitled to it; (vi) file with the recording

of the county wherein the

of real property, acknowledged statement to be recorded and indexed under the name of the incapacitated incapacitated person is assessed officer person identifying the real property, possessed by the incapacitated person, and the tax map numbers of the property, and stating the date of ad judication of incapacity of the person regarding property management, and the

name,

address, and telephone number of the guardian and the guardian's surety; and

(vii) perform all other duties required by law.

7. á guardian who is given authority relating to the personal needs of the incapacitated person shall afford the incapacitated person the greatest amount of independence and self-determination with respect to personal needs in light of that person's functional level, understanding and appreciation of that person's functional limitations, and personal wishes, preferences and desires with regard to managing the activities of daily living. § 81.21 Powers of guardian; property management.

(a) Consistent with the functional limitations of the incapacitated person, that person's understanding and appreciation of the harm that he

she is likely to suffer as the result of the inability to manage property and financial affairs, and that person's personal wishes, preferences,

and desires with regard to managing the activities of daily living, and the least restrictive form of intervention, the court may authorize the guardian to exercise those powers necessary and sufficient to manage the property and financial affairs of the incapacitated per-, son;

to provide for the maintenance and support of the incapacitated person, and those persons depending upon the incapacitated person;

to transfer a part of the incapacitated person's assets to or for the benefit of another person on the ground that the incapacitated person would have made the transfer if he or she had the capacity to act.

Transfers made pursuant to this article may be in any form that the incapacitated person could have employed if he or she had the requisite capacity, except in the form of a will or codicil.

Those powers which may be granted include, but are not limited to, the power to:

1. make gifts;

2. provide support for persons dependent upon the incapacitated person for support, whether or not the incapacitated person

is legally obligated to provide that support;

3. convey or release contingent and expectant interests in property, including marital property rights and any right of survivorship incidental to joint tenancy or tenancy by the entirety; 4. exercise

release powers held by the incapacitated person as trustee, personal representative, guardian for minor, guardian, or donee of a power of appointment;

5. enter into contracts;

6. create revocable or irrevocable trusts of property of the estate which may extend beyond the incapacity or life of the incapacitated person;

7. exercise options of the incapacitated person to purchase securities or

8. exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value;

9. exercise any right to elective share in the estate of the incapacitated person's deceased spouse; and

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10. renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer consistent with paragraph (c) of section 2-1.11 of the estates, powers and trusts law.

(b) If the petitioner or the guardian seeks the authority to exercise a power which involves the transfer of part of the incapacitated person's assets to or for the benefit of another person, including the petitioner or guardian, the petition shall include the following information:

1. whether any prior proceeding has at any time been commenced by any person seeking such power with respect to the property of the incapacitated person and, if so, a description of the nature of such application and the disposition made of such application;

2. the amount and nature of the financial obligations of the incapacitated person including funds presently and prospectively required to provide for the incapacitated person's own maintenance, support, and well-being and to provide for other persons dependent upon the incapac itated person for support, whether or not the incapacitated person is legally obligated to provide that support; a copy of any court order written agreement setting forth support obligations of the incapacitated person shall be attached to the petition if available to the petitioner or guardian;

3. the property of the incapacitated person that is the subject of the present application;

4. the proposed disposition of such property and the reasons why such disposition should be made;

5. whether the incapacitated person has sufficient capacity to make the proposed disposition; if the incapacitated person has such capacity, his or her written consent shall be attached to the petition;

6., whether the incapacitated person has previously executed a will or similar instrument and if so, the terms of the most recently executed will together with a statement as to how the terms of the will became known to the petitioner or guardian; for purposes of this article, the term "will" shall have the meaning specified in section 1-2.18 of the estates, powers and trusts law and "similar instrument" shall include a revocable or irrevocable trust :

(i) if the petitioner or guardian can, with reasonable diligence, obtain a copy, a copy of the most recently executed will siinilar instrument shall be attached to the petition; in such case, the petition shall contain a statement as to how the copy was secured and the basis for the petitioner or guardian's belief that such copy is a copy of the incapacitated person's most recently executed will similar instrument.

(ii) if the petitioner or guardian is unable to obtain a copy of the most recently executed will or similar instrument, or if the petitioner or guardian is unable to determine whether the incapacitated person has previously executed a will or similar instrument, what efforts were made by the petitioner or guardian to ascertain such information.

(iii) if a copy of the most recently executed will or similar instrument is not otherwise available, the court may direct

attorney other person who has the original will or similar instrument in his or her possession to turn a photocopy over to the court for its examination,

in camera. А photocopy of the will or similar instrument shall then be turned over by the court to the parties in such proceeding less the court finds that to do so would be contrary to the best interests of the incapacitated person;

7. a description of any significant gifts or patterns of gifts made by the incapacitated person;

8. the names, post-office addresses and relationships of the presumptive distributees of the incapacitated person as that term is defined in subdivision forty-two

of section one hundred three of the surrogate's court procedure act and of the beneficiaries under the most recent will or similar instrument executed by the incapacitated person.

(c) Notice à petition seeking relief under this section shall be

(1) the persons entitled to notice in accordance with paragraph one of subdivision (d) of section 81.07 of this article;

(ii) if known to the petitioner or guardian, the presumptive distributees of the incapacitated person as that term is defined in subdi

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vision forty-two of section one hundred three of the surrogate's court procedure act unless the court dispenses with such notice; and

(iii) if known to the petitioner or guardian, any person designated in the most recent will or similar instrument of the incapacitated person

beneficiary whose rights or interests would be adversely affected by the relief requested in the petition unless the court dispenses with such notice.

(d) In determining whether to approve the application, the court shall consider:

whether the incapacitated person has sufficient capacity to make the proposed disposition himself or herself, and, if so, whether he she has consented to the proposed disposition;

2. whether the disability of the incapacitated person is likely to be of sufficiently short duration such that he or she should make the determination with respect to the proposed disposition when no longer disabled;

3. whether the needs of the incapacitated person and his or her dependents or other persons depending upon the incapacitated person for sup: port can be met from the remainder of the assets of the incapacitated person after the transfer is made;

4. whether the donees or beneficiaries of the proposed disposition are the natural objects of the bounty of the incapacitated

person and whether the proposed disposition is consistent with any known testamentary plan or pattern of gifts he or she has made;

5. whether the proposed disposition will produce estate, gift, income or other tax savings which will significantly benefit the incapacitated person or his or her dependents or other persons for whom the incapacitated person would be concerned; and

6. such other factors as the court deems relevant.

(e) The court may grant the application if satisfied by clear and convinc ing evidence of the following and shall make record of these findings:

1. the incapacitated person lacks the requisite mental capacity to perform the act or acts for which approval has been sought and is not likely to regain such capacity within a reasonable period of time or, if the incapacitated person has the requisite capacity, that he or she consents to the proposed disposition;

2. a competent, reasonable individual in the position of the incapacitated person would be likely to perform the act or acts under the circumstances; and

3. the incapacitated person has not manifested an intention inconsistent with the performance of the act or acts for which

approval has been sought at some earlier time when he or she had the requisite capacity or, if such intention was manifested, the particular person would be likely to have changed such intention under the circumstances existing at the time of the filing of the petition.

(f) Nothing, in this article imposes any duty on the guardian to com mence a special proceeding pursuant to this art'icle seeking to transfer

part of the assets of the incapacitated person to or for the benefit of another person and the guardian shall not be liable or accountable to any person for having failed to commence a special proceeding pursuant to this article seeking to transfer a part of the assets of the incapacitated person to or for the benefit of another person. § 81.22 Powers of guardian; personal needs.

(a) Consistent with the functional limitations of the incapacitated person, that person's understanding and appreciation of the harm that he or she' is likely to suffer as the result of the inability to provide for personal needs, and that

person's personal wishes, desires with regard to managing the activities of daily living, and the

preferences, and least restrictive form of intervention, the court may grant to guardian powers necessary and sufficient to provide for the personal needs of the incapacitated person. Those powers which may

be granted include, but are not limited to, the power to:

1. determine who shall provide personal care or assistance;
2. make decisions regarding

social
environment

and other social
aspects of the life of the incapacitated person;
3. determine whether the incapacitated person should travel;

4. determine whether the incapacitated person should possess a license to drive;

5. authorize access to or release of confidential records;
6. make decisions regarding education;
7. apply for government and private benefits

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