§ 81.02 Power to appoint a guardian of the person and/or property;

standard for appointment.

(a) The court may appoint a guardian for a person if the court
determines:

1. that the appointment is necessary to provide for the personal needs
of that person, including food, clothing, shelter, health care, or
safety and/or to manage the property and financial affairs of that
person; and

2. that the person agrees to the appointment, or that the person is
incapacitated as defined in subdivision (b) of this section. In deciding
whether the appointment is necessary, the court shall consider the
report of the court evaluator, as required in paragraph five of
subdivision (c) of section 81.09 of this article, and the sufficiency
and reliability of available resources, as defined in subdivision (e) of
section 81.03 of this article, to provide for personal needs or property
management without the appointment of a guardian. Any guardian appointed
under this article shall be granted only those powers which are
necessary to provide for personal needs and/or property management of
the incapacitated person in such a manner as appropriate to the
individual and which shall constitute the least restrictive form of
intervention, as defined in subdivision (d) of section 81.03 of this
article.

(b) The determination of incapacity shall be based on clear and
convincing evidence and shall consist of a determination that a person
is likely to suffer harm because:

1. the person is unable to provide for personal needs and/or property
management; and

2. the person cannot adequately understand and appreciate the nature
and consequences of such inability.

(c) In reaching its determination, the court shall give primary
consideration to the functional level and functional limitations of the
person. Such consideration shall include an assessment of that person's:

1. management of the activities of daily living, as defined in
subdivision (h) of section 81.03 of this article;

2. understanding and appreciation of the nature and consequences of
any inability to manage the activities of daily living;

3. preferences, wishes, and values with regard to managing the
activities of daily living; and

4. the nature and extent of the person's property and financial
affairs and his or her ability to manage them.

It shall also include an assessment of (i) the extent of the demands
placed on the person by that person's personal needs and by the nature
and extent of that person's property and financial affairs; (ii) any
physical illness and the prognosis of such illness; (iii) any mental
disability, as that term is defined in section 1.03 of this chapter,
alcoholism or substance dependence as those terms are defined in section
19.03 of this chapter, and the prognosis of such disability, alcoholism
or substance dependence; and (iv) any medications with which the person
is being treated and their effect on the person's behavior, cognition
and judgment.

(d) In addition, the court shall consider all other relevant facts and
circumstances regarding the person's:

1. functional level; and

2. understanding and appreciation of the nature and consequences of
his or her functional limitations.