1. The Laws of New York
  2. Consolidated Laws
  3. Mental Hygiene
  4. Title E: General Provisions
  5. Article 81: Proceedings for Appointment of a Guardian for Personal Needs or Property Management


Section 81.07 Notice

Mental Hygiene (MHY)

  (a) Proceeding. A proceeding under this article shall be commenced upon the filing of the petition.

  (b) Order to show cause. Upon the filing of the petition, the court shall:

  1. set the date on which the order to show cause is heard no more than twenty-eight days from the date of the signing of the order to show cause. The court may for good cause shown set a date less than twenty-eight days from the date of the signing of the order to show cause. The date of the hearing may be adjourned only for good cause shown;

  2. include in the order to show cause the name, address, and telephone number of the person appointed as court evaluator in accordance with section 81.09 of this article;

  3. require the order to show cause 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 in the form and manner prescribed in this section; the court shall not require that supporting papers contain medical information; and

  4. require notice of the proceeding together with a copy of the order to show cause to be given to the persons identified in paragraph one of subdivision (e) of this section and in the form and manner prescribed in this section.

  (c) Form of the order to show cause. 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 of his or her rights, and shall include the following information:

  1. date, time, and place of the hearing of the petition;

  2. a clear and easily readable statement of the rights of the person alleged to be incapacitated that are set forth in section 81.11 of this article;

  3. the name, address, and telephone number of the person appointed as court evaluator pursuant to section 81.09 of this article;

  4. the name, address, and telephone number of the attorney if one has been appointed for the person alleged to be incapacitated pursuant to section 81.10 of this article; and

  5. a list of the powers which the guardian would have the authority to exercise on behalf of the person alleged to be incapacitated if the relief sought in the petition is granted.

  (d) Legend. The order to show cause shall also include on its face the following legend in twelve point or larger bold face double spaced type:

   IMPORTANT

  An application has been filed in court by ____________ who believes you may be unable to take care of your personal needs or financial affairs. ______ is asking that someone be appointed to make decisions for you. With this paper is a copy of the application to the court showing why ______________ believes you may be unable to take care of your personal needs or financial affairs. Before the court makes the appointment of someone to make decisions for you the court holds a hearing at which you are entitled to be present and to tell the judge if you do not want anyone appointed. This paper tells you when the court hearing will take place. If you do not appear in court, your rights may be seriously affected.

  You have the right to demand a trial by jury. You must tell the court if you wish to have a trial by jury. If you do not tell the court, the hearing will be conducted without a jury. The name and address, and telephone number of the clerk of the court are:

  The court has appointed a court evaluator to explain this proceeding to you and to investigate the claims made in the application. The court may give the court evaluator permission to inspect your medical, psychological, or psychiatric records. You have the right to tell the judge if you do not want the court evaluator to be given that permission. The court evaluator's name, address, and telephone number are:

  You are entitled to have a lawyer of your choice represent you. If you want the court to appoint a lawyer to help you and represent you, the court will appoint a lawyer for you. You will be required to pay that lawyer unless you do not have the money to do so.

  (e) Service of the order to show cause.

  1. The persons entitled to service of the order to show cause shall include:

  (i) the person alleged to be incapacitated; and

  (ii) the attorney for the person alleged to be incapacitated, if known to the petitioner; and

  (iii) the court evaluator.

  2. Manner of service.

  (i) 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 fourteen days prior to the hearing date of the order to show cause. However, the court may direct that the order to show cause and a copy of the petition be served on the person alleged to be incapacitated in a manner other than personal delivery when the petitioner demonstrates to the court's satisfaction that the person alleged to be incapacitated has refused to accept service.

  (ii) the order to show cause and a copy of the petition shall be served upon the court evaluator and the attorney for the alleged incapacitated person, if there is one, by facsimile, provided that a facsimile telephone number is designated by the attorney for that purpose, or by delivering the papers personally or by overnight delivery service to the office of the court evaluator and the attorney for the alleged incapacitated person, if there is one, within three business days following the appointment of the court evaluator and the appointment of the attorney or the appearance of an attorney retained by the alleged incapacitated person.

  3. The court may direct that the order to show cause be served within a time period less than the period required in paragraph two of this subdivision for good cause shown.

  (f) Form of the notice of the proceeding. The notice of the proceeding shall substantially set forth:

  1. The name and address of the alleged incapacitated person to whom the guardianship proceeding relates;

  2. The name and address of the petitioner;

  3. The names of all persons to be given notice of the proceeding;

  4. The time when and the place where the order to show cause shall be heard;

  5. The object of the proceeding and the relief sought in the petition;

  6. The name, address and telephone number of the petitioner's attorney.

  (g) Notice of the proceeding.

  1. Persons entitled to notice of the proceeding shall include:

  (i) the following persons, other than the petitioner, who are known to the petitioner or whose existence and address can be ascertained by the petitioner with reasonably diligent efforts: the spouse of the person alleged to be incapacitated, if any; the parents of the person alleged to be incapacitated, if living; the adult children of the person alleged to be incapacitated, if any; the adult siblings of the person alleged to be incapacitated, if any; the person or persons with whom person alleged to be incapacitated resides; and

  (ii) in the event no person listed in subparagraph (i) of this paragraph is given notice, then notice shall be given to at least one and not more than three of the living relatives of the person alleged to be incapacitated in the nearest degree of kinship who are known to the petitioner or whose existence and address can be ascertained by the petitioner with reasonably diligent efforts; and

  (iii) any person or persons designated by the alleged incapacitated person with authority pursuant to sections 5-1501, 5-1505, and 5-1506 of the general obligations law, or sections two thousand nine hundred five and two thousand nine hundred eighty-one of the public health law, if known to the petitioner; and

  (iv) if known to the petitioner, any person, whether or not a relative of the person alleged to be incapacitated, or organization that has demonstrated a genuine interest in promoting the best interests of the person alleged to be incapacitated such as by having a personal relationship with the person, regularly visiting the person, or regularly communicating with the person; and

  (v) if it is known to the petitioner that the person alleged to be incapacitated receives public assistance or protective services under article nine-B of the social services law, the local department of social services; and

  (vi) if the person alleged to be incapacitated resides in a facility, the chief executive officer in charge of the facility; and

  (vii) if the person alleged to be incapacitated resides in a mental hygiene facility, the mental hygiene legal service of the judicial department in which the residence is located; and

  (viii) such other persons as the court may direct based on the recommendation of the court evaluator in accordance with subparagraph (xvii) of paragraph five of subdivision (c) of section 81.09 of this article.

  2. Notice of the proceeding together with a copy of the order to show cause shall be mailed to the persons identified in paragraph one of this subdivision not less than fourteen days prior to the hearing date in the order to show cause.

  3. The court may direct that the notice of proceeding be mailed within a time period less than the period required in paragraph two of this subdivision for good cause shown.