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8. consent to or refuse generally accepted routine or major medical or dental treatment; the guardian shall make treatment decisions consistent with the findings under section 81.15 of this article and in accordance with the patient's wishes, including the patient's religious and moral beliefs, if the patient's wishes are not known and cannot be ascertained with reasonable diligence, in accordance with the person's best interests, including consideration of the dignity and uniqueness of every person, the possibility and extent of preserving the

person's life, the

preservation, improvement restoration of the person's health or functioning, the relief of the person's suffering, the adverse side effects associated with the treatment, any less intrusive alternative treatments, and such other concerns and values as a reasonable person in the incapacitated person's circumstances would wish to consider;

9. choose the place of abode; the choice of abode must be consistent with the findings under section 81.15 of this article, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility as those terms are defined in section two thousand eight hundred one of the public

health law, other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the

circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person. (b) No guardian may:

1. consent to the voluntary formal or informal admission of the incapacitated person to a mental hygiene facility under article nine or fifteen of this chapter;

2. revoke any appointment or delegation made by the incapacitated person pursuant to sections 5-1501, 5-1601 and 5-1602 of the general obligations law, sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law, or any living will. § 81.23 Provisional remedies. (a) Temporary guardian.

1. At the commencement of the proceeding or at any subsequent stage of the proceeding prior to the appointment of a guardian, the court may, ụpon showing of danger in the reasonably foreseeable future to the health and well being of the alleged incapacitated person, or danger of waste,, misappropriation, or loss of the property of the alleged incapacitated person, appoint a temporary guardian for a period not to extend beyond the date of the issuance of the commission to a guardian appointed pursuant to this article. The powers and duties

the
porary guardian shall be specifically enumerated in the order of ap-
pointment and are limited in the same manner as

the
powers

of guardian appointed pursuant to this article. Prior to the expiration of the term of appointment, the temporary guardian shall report to the court all actions taken pursuant to the order* appointment. The court may approve, a reasonable compensation for the temporary guardian; however, if the court finds that the temporary 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 temporary guardian.

2., Notice of the appointment of the temporary guardian shall be given to the person alleged to be incapacitated and to any person having custody or controi over the person or property of the person alleged to be incapacitated in such manner as the court may prescribe.

3. The authority and responsibility of a temporary guardian begins upon the issuance of the commission of temporary guardianship,

4. The court may require the temporary guardian to file a bond in accordance with section 81.25 of this article.

(6) Injunction and temporary restraining order.

1. The court may, with or without security, en join any person, other than the incapacitated person or the person alleged to be incapacitated from selling, assigning, from disposing of property or confessing judgment which may become a lien on property or receiving arranging

* So in original. (Word "of" inadvertently omitted. )
EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

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for another person to receive property from the incapacitated person or the person alleged to be incapacitated or doing or suffering to be done any act or omission endangering the welfare of the incapacitated person or the person alleged to be incapacitated when an application under this article seeks such an injunction and it satisfactorily appears from the application, affidavits, and other proofs that a person has done, has suffered to be done or omitted to do, or threatens to do or is about to do an act that endangers the welfare of the incapacitated person or the person alleged

to be incapacitated or has acquired or is about to acquire any property, from the incapacitated person or person alleged to be incapacitated during the time of that person's incapacity or alleged incapacity without adequate consideration. Such order shall be made upon an order to show cause or upon the initiative of the court and may, upon the application for the appointment of a guardian, in the discretion of the court, be continued for ten days after the appointment of an adult guardian. Notice of any in junction shall be given to any person joined, to the incapacitated person or the person alleged to be incapacitated, and to any person having custody or control over the person property of the incapacitated person the person alleged to be incapacitated in such manner as the court may prescribe.

2. А temporary restraining order may be granted with or without security when an application seeks an injunction under paragraph one

of this subdivision and where the court is satisfied that in the absence of such restraining order, the property of the incapacitated person or per

alleged to be incapacitated would be dissipated to that person's detriment or that the welfare of the incapacitated person or the person alleged to be incapacitated would be endangered. Notice of the temporary restraining order shall be given to any person restrained, to the incapacitated person or the person alleged to be incapacitated, and to any person having custody or control over the person or property of the incapacitated person or person alleged to be incapacitated in such man, ner as the court may prescribe. Such temporary restraining order shall neither be vacated nor modified except upon notice to the petitioner and to each person required to receive notice of the petition pursuant to paragraph one of subdivision (d) of section 81.07 of this article.

3. When the court is satisfied that the interest of the incapacitated person or person alleged to be incapacitated would be appropriately served, the court may provide in a temporary restraining order that such temporary restraining order shall have the effect of :

(i) a restraining notice when served in a manner and upon such persons as the court in its discretion shall deem appropriate;

(ii) conferring information subpoena power upon the attorney for the petitioner when the court in its discretion shall deem appropriate.

4. Where such a temporary restraining order provides for a restraining notice a person having custody or control over the person or property of the incapacitated

person or the person alleged to be incapacitated is forbidden to make or suffer any sale, assignment, transfer

interference with any property of the incapacitated person or the person alleged to be incapacitated except pursuant to the order of the court.

5. Where such a temporary restraining order provides the petitioner's attorney with information subpoena power, service of a copy of the order together with

an information subpoena shall require any person so subpoenaed to provide petitioner's attorney with any information concerning, the

financial affairs of the incapacitated person or the person alleged to be incapacitated. § 81.24 Notice of pendency.

The petitioner shall, prior to judgment, file a notice of pendency if real property or any interest therein is

may be affected by the proceeding: $ 81.25 Filing of bond by guardian.

(a) Before the guardian, or special guardian appointed under this article, enters upon the execution of the guardian's duties, the court may require or dispense with the filing of a bond.

10) The court may require or dispense with the filing of a bond by the temporary guardian. if the temporary guardian is

required to file bond, such bond must be filed within ten days after the issuance of the temporary guardian's commission.

(0) Notwithstanding any other provision of this section, any community guardian program operating pursuant to the provisions of title three of article nine-B of the social services law, appointed as guardian puri suant to subdivision (a) of section 81.19 of this article, may file with the clerk

of

the court before the thirty-first day of January of each

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year, a consolidated undertaking up to the amount of million five hundred thousand dollars, in lieu of filing individual undertakings for each incapacitated person for whom it serves as guardian, as required by subdivision (a) of this section. To the extent of the aggregate value of such consolidated undertaking, the community guardian program

will certify to the clerk of the court faithful discharge of the trust imposed upon it, obey all directions of the court in regard to the trust, and make and render a true account of all properties received by it and the application thereof and of its acts in the administration of its trust whenever so required to do by the court. At such time as the aggregate amount of the individual bonds, fixed by the court pursuant

to subdivision (a) of this section for persons for whom the community guardian program is appointed guardian, shall exceed

exceed the consolidated bond filed by such program, the program shall before entering upon the execution of its duties, file with the clerk of the court individual undertakings, in the amounts fixed by the court, that it will faithfully discharge the trust imposed upon it:

(d) If the court requires the filing of a bond, the guardian or special' or temporary guardian appointed under this article shall file with the clerk of the court by which such guardian was appointed a bond that he or she will faithfully discharge the powers granted by the court to the guardian, obey all directions of the court in regard to the powers, and make and render a true account of all properties received by him her and the application thereof and a true report of his or her acts in the administration of his or her powers, whenever so required to do by the court. The amount of the bond shall be fixed by the court. If the guardian receives after-acquired property not covered by the bond, such guardian shall immediately have such acquisition approved by the court and file a further bond. § 81.26 Designation of clerk to receive process.

No commission shall issue nor shall any order which itself constitutes a commission become effective until an instrument executed and acknowledged by the guardian has been filed with the clerk of the court designating the clerk and the clerk's successor in office as a person on whom service of any process may be made in like manner and with like effect as if it were served personally ироп the guardian whenever the guardian cannot, with due diligence, be served within the state. $ 81.27 Commission to guardian.

Within five days after the guardian has filed a designation under seçtion 81.26 of this article, and has filed a bond in accordance with the provisions of section 81.25 of this article unless the court has waived the filing of the bond or unless the guardian's appointment is, pursuant to section 81.23 of this article, the clerk of the court shall issue a commission which shall state:

1. the title of the proceeding and the name, address, and telephone number of the incapacitated person, and 2.

address, and telephone number of the guardian and the specific powers of such guardian; and

3. the date when the appointment of the guardian was ordered by the court; and

4. the date on which the appointment terminates if one has been ordered by the court.

81.28 Compensation of guardian.

(a) The court shall establish, and may from time to time modify, a plan for the reasonable compensation of the guardian, The plan for compensation of the guardian may

be similar to the compensation of a trustee pursuant to section two thousand three hundred nine of

the surrogate's court procedure act; however, the plan must take into account the specific authority of the guardian to provide for the personal needs and/or property management for the incapacitated person.

(b) If the court finds that the guardian has failed to discharge his or her duties satisfactorily in any, respect,

the court may deny

or
reduce the compensation which would otherwise be allowed.
$ 81,29 Effect of the appointment on the incapacitated person.

(a) An incapacitated person for whom a guardian has been appointed
retains all powers and rights except those powers and rights which the
guardian is granted.
(b) Subject

to subdivision (a) of this section, the appointment of a guardian shall not be conclusive evidence that the person lacks capacity EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law

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for any other purpose, including the capacity to dispose of property by will.

(c) The title to all property, of the incapacitated person shall be in such person and not in the guardian. The property shall be subject to the possession of the guardian and to the control of the court for the purposes of administration, sale or other disposition only to the extent directed by the court order appointing the guardian.

(d) If the court determines that the person is incapacitated and appoints a guardian, the court may modify, amend, or revoke any previously executed appointment, power, or delegation under section 5-1501, 5-1601, or 5-1602 of the general obligations law or section two thousand nine hundred sixty-five of the public health law, or section two thousand nine hundred eighty-one of the public health law notwithstanding section two thousand nine hundred ninety-two of the public health law, or any contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, delegation, contract, lifetime or to take effect upon death, was made while

conveyance, , or disposition during

the person incapacitated.

(e) Nothing in this article shall be construed either to prohibit a court from granting, or to authorize a court to grant, , to any person the power to give consent for the withholding or withdrawal of l'ife sustaining treatment, including artificial nutrition and hydration. When used in this article, life sustaining treatment means medical treatment which is sustaining life functions and without which, according to reasonable medical judgment, that patient will die within a relatively short time period. $ 81.30 Initial report.

(a) No later than ninety days after the issuance of the commission to the guardian, the guardian shall file with the court a report in a form prescribed by the

court stating what steps the guardian has taken to fulfill his or her responsibilities. Proof of completion of the guardian education requirements under section 81.39 of this article must be filed with the initial report.

(b) To the extent that the guardian has been granted powers with respect to property management, the initial report shall contain a verified and complete inventory of the property and financial resources over which the guardian has control, the location of any will executed by the incapacitated person, the guardian's plan, consistent with the court's order of appointment,' for, the management of such property and financial resources,

and any need for any change in the powers authorized by the court.

(c) To the extent that the guardian has been granted powers regarding personal needs, the initial report shall contain

report of the guardian's personal visits with the incapacitated person, and the steps the guardian has taken,, consistent with the court's order,

to provide for the personal needs of that person, the guardian's plan, consistent with the court's order of appointment, for providing for the personal needs of the incapacitated person, a copy of any directives in accordance with sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law, any living will, and any other advance directive, and any necessary change in the powers authorized by the court.

The plan for providing for the personal needs of the incapacitated person shall include the following information:

1. the medical, dental, mental health, or related services that are to be provided for the welfare of the incapacitated person;

2. the social and personal services that are to be provided for the welfare of the incapacitated person;

3. any physical, dental, and mental health examinations necessary to determine the medical, dental, and mental health treatment needs; and

4. the application of health and accident insurance and any other private or government benefits to which the incapacitated person may be en titled to meet any part of the costs of medical, dental, mental health, or related services provided to the incapacitated person.

(d) If the initial report sets forth any reasons for a change in the powers authorized by the court, the guardian shall make within ten days of the filing of the report on notice to the persons en titled to such notice in accordance with paragraph

of subdivision (d) of section 81.07 of this article for such relief.

If the initial report sets forth any reasons for a change in the powers

authorized by

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the court and the guardian fails to act under this subdivision, any person entitled to commence a proceeding under this article may

petition the court for a change, in such powers on notice to the guardian and the persons entitled to such notice in accordance with paragraph one of subdivision (d) of section 81.07 of this article for such relief. § 81.31 Annual report.

(a) Filing of annual report. Every guardian shall file a report annually in the month of May, or at any other time upon motion or order of the court.

(b) The report shall be in a form prescribed by the court and shall include the following information:

1. the present address and telephone number of the guardian.

2. the present address, and telephone number of the incapacitated person; if the place of residence of the incapacitated person is not his or her' personal home, the name, address, and telephone number of the facility or place at which the person resides and the name of the chief executive officer of the facility or person otherwise responsible for the person's care.

3. any major changes in the physical or mental condition of the incapacitated person and any substantial change in medication.

4. the date that the incapacitated person was last examined or otherwise seen by a physician and the purpose of that visit.

5. а statement by physician, psychologist, nurse clinician, or social worker, or other person that has evaluated or examined the incapacitated person within the three months prior to the filing of the report regarding an evaluation of the incapacitated person's condition and the current functional level of the incapacitated person.

6. to the extent the guardian is charged with providing for the personal needs of the incapacitated person:

(i) statement of whether the current residential setting is best suited to the current needs of the incapacitated person;

(ii) a resume of any professional medical treatment given to the ward in the preceding year;

(iii) the plan for medical, dental, and mental health treatment, and related services in the coming year;

(iv) information concerning the social condition of the incapacitated person, including: the social and personal services currently utilized by the incapacitated person; the social skills of the incapacitated person; and the social needs of the incapacitated person.

7. to the extent the guardian is charged with property management, information required by the provisions of the surrogate's court procedure act prescribing the form of papers to be filed upon the annual accounting of a general guardian of an infant's property.

8. where the guardian has used or employed the services of the incapacitated person or where moneys have been earned by received on behalf of such incapacitated person an accounting of any moneys earned or derived from such services. 9.

of any other activities performed by the guardian on behalf of the incapacitated person, 10. facts indicating

the need to terminate the appointment of the guardian, or for any alteration in the powers of the guardian and what specific authority is requested or what specific authority of the guardian will be affected.

11, any other information which the guardian may be required to file by the order of appointment.

(c) The guardian shall send a copy of the annual report to the incapacitated person by mail and shall file a copy of the annual report provided herein. If the incapacitated person resides in a facility, hospital, school, or an alcoholism facility in this state as those terms are defined in section 1.03 of this chapter, a substance abuse program as that term is defined in section 19.03 of this chapter, an adult care facility as

that term is defined in section two of the social services law, a residential health care facility or a general hospital those terms

are defined in section two thousand eight hundred one of the public health law, the guardian shall send a duplicate of such report to the chief executive officer of that facility and the mental hygiene legal service of the judicial department

in which the residence is located. EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

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