§ 81.10 Counsel.\n (a) Any person for whom relief under this article is sought shall have\nthe right to choose and engage legal counsel of the person's choice. In\nsuch event, any attorney appointed pursuant to this section shall\ncontinue his or her duties until the court has determined that retained\ncounsel has been chosen freely and independently by the alleged\nincapacitated person.\n (b) If the person alleged to be incapacitated is not represented by\ncounsel at the time of the issuance of the order to show cause, the\ncourt evaluator shall assist the court in accordance with subdivision\n(c) of section 81.09 of this article in determining whether counsel\nshould be appointed.\n (c) The court shall appoint counsel in any of the following\ncircumstances unless the court is satisfied that the alleged\nincapacitated person is represented by counsel of his or her own\nchoosing:\n 1. the person alleged to be incapacitated requests counsel;\n 2. the person alleged to be incapacitated wishes to contest the\npetition;\n 3. the person alleged to be incapacitated does not consent to the\nauthority requested in the petition to move the person alleged to be\nincapacitated from where that person presently resides to a nursing home\nor other residential facility as those terms are defined in section two\nthousand eight hundred one of the public health law, or other similar\nfacility;\n 4. if the petition alleges that the person is in need of major medical\nor dental treatment and the person alleged to be incapacitated does not\nconsent;\n 5. the petition requests the appointment of a temporary guardian\npursuant to section 81.23 of this article;\n 6. the court determines that a possible conflict may exist between the\ncourt evaluator's role and the advocacy needs of the person alleged to\nbe incapacitated;\n 7. if at any time the court determines that appointment of counsel\nwould be helpful to the resolution of the matter.\n (d) If the person refuses the assistance of counsel, the court may,\nnevertheless, appoint counsel if the court is not satisfied that the\nperson is capable of making an informed decision regarding the\nappointment of counsel.\n (e) The court may appoint as counsel the mental hygiene legal service\nin the judicial department where the residence is located.\n (f) The court shall determine the reasonable compensation for the\nmental hygiene legal service or any attorney appointed pursuant to this\nsection. The person alleged to be incapacitated shall be liable for such\ncompensation unless the court is satisfied that the person is indigent.\nIf the petition is dismissed, the court may in its discretion direct\nthat petitioner pay such compensation for the person alleged to be\nincapacitated. When the person alleged to be incapacitated dies before\nthe determination is made in the proceeding, the court may award\nreasonable compensation to the mental hygiene legal service or any\nattorney appointed pursuant to this section, payable by the petitioner\nor the estate of the decedent or by both in such proportions as the\ncourt may deem just.\n (g) If the court appoints counsel under this section, the court may\ndispense with the appointment of a court evaluator or may vacate or\nsuspend the appointment of a previously appointed court evaluator.\n
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