§ 81.10 Counsel.

(a) Any person for whom relief under this article is sought shall have
the right to choose and engage legal counsel of the person's choice. In
such event, any attorney appointed pursuant to this section shall
continue his or her duties until the court has determined that retained
counsel has been chosen freely and independently by the alleged
incapacitated person.

(b) If the person alleged to be incapacitated is not represented by
counsel at the time of the issuance of the order to show cause, the
court evaluator shall assist the court in accordance with subdivision
(c) of section 81.09 of this article in determining whether counsel
should be appointed.

(c) The court shall appoint counsel in any of the following
circumstances unless the court is satisfied that the alleged
incapacitated person is represented by counsel of his or her own
choosing:

1. the person alleged to be incapacitated requests counsel;

2. the person alleged to be incapacitated wishes to contest the
petition;

3. the person alleged to be incapacitated does not consent to the
authority requested in the petition to move the person alleged to be
incapacitated from where that person presently resides to a nursing home
or other residential facility as those terms are defined in section two
thousand eight hundred one of the public health law, or other similar
facility;

4. if the petition alleges that the person is in need of major medical
or dental treatment and the person alleged to be incapacitated does not
consent;

5. the petition requests the appointment of a temporary guardian
pursuant to section 81.23 of this article;

6. the court determines that a possible conflict may exist between the
court evaluator's role and the advocacy needs of the person alleged to
be incapacitated;

7. if at any time the court determines that appointment of counsel
would be helpful to the resolution of the matter.

(d) If the person refuses the assistance of counsel, the court may,
nevertheless, appoint counsel if the court is not satisfied that the
person is capable of making an informed decision regarding the
appointment of counsel.

(e) The court may appoint as counsel the mental hygiene legal service
in the judicial department where the residence is located.

(f) The court shall determine the reasonable compensation for the
mental hygiene legal service or any attorney appointed pursuant to this
section. The person alleged to be incapacitated shall be liable for such
compensation unless the court is satisfied that the person is indigent.
If the petition is dismissed, the court may in its discretion direct
that petitioner pay such compensation for the person alleged to be
incapacitated. When the person alleged to be incapacitated dies before
the determination is made in the proceeding, the court may award
reasonable compensation to the mental hygiene legal service or any
attorney appointed pursuant to this section, payable by the petitioner
or the estate of the decedent or by both in such proportions as the
court may deem just.

(g) If the court appoints counsel under this section, the court may
dispense with the appointment of a court evaluator or may vacate or
suspend the appointment of a previously appointed court evaluator.