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(d) The report shall be filed in the office of the clerk of the county in which the incapacitated person last resided before the appointment of the guardian if he or she was at such time a resident of the city of New York. If the incapacitated person was not then a resident of the city of New York, it shall be filed in the office of the clerk of the court which appointed the guardian.

(e) If the annual report sets forth any reasons for a change in the powers authorized by the court, the guardian shall make an application within ten days of the filing of the report on notice to the persons entitled to such notice in accordance with paragraph three of subdivision (c) of section 81.16 of this article for such relief. If the annual report sets forth any reasons for a change in the powers authorized by the court, and the guardian fails to act in accordance with 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 three of subdivision (c) of section 81.16 of this article for such relief. § 81.32 Examination of initial and annual reports.

(a) Examination of reports generally.

1. Initial report. Within thirty days of the filing of the initial report, the initial report filed by a guardian under this article shall be examined.

2. Annual examination. Within thirty days after the filing of the annual report of the preceding year, the annual reports filed by guardians under this article shall be examined to determine the condition and care of the incapacitated person, the finances of the incapacitated person, and the manner in which the guardian has carried out his or her duties and .

(b) Examiners. The presiding justice of the appellate division in each department, or a justice of the supreme court

special referee designated by majority of the justices of the appellate division in each department at the request of the presiding, justice, shall examine,

cause to be examined by persons designated by the presiding justice or the justices as examiners, all such reports.

(9) Failure tarde porta

1. If a guardian fails to file his or her initial or annual report, the person authorized to examine the report shall demand that the guardiana file the report within fifteen days after the service of the demand upon him or her or show cause why he or she should not be compelled to do so.

A copy of the demand shall be served upon the guardian or his or her resident agent.

2. Upon failure to comply with such demand, the court, may upon the recommendation of the court examiner, enter

order

requiring compliance with the demand and may deny or reduce the amount of the compen, sation of the guardian, or remove the guardian pursuant to section 81.35 of this article.

(d) Incomplete report.

1. If the person authorized to examine the report is of the opinion that a more complete or satisfactory report should be filed, the person authorized to examine the report shall demand that the guardian file a revised report or proof of any item in the report or show cause why, he or she should not be compelled to do so. A copy of the demand shall be served upon the guardian or his or her resident agent.

2. Upon failure to comply with such demand, the court, may upon the recommendation of the court examiner, enter an order requiring compliance with the demand and may deny or reduce the amount of the compena sation of the guardian, or remove the guardian pursuant to section 81.35 of this article.

(e) Duty of examiners. The person examining the report may examine the guardian and other witnesses under oath and reduce their testimony to writing. The person examining the report shall file a report in the form and manner prescribed by the order appointing the examiner.

(f) Expenses of examination. The expenses of the examination shall be payable out of the estate of the incapacitated person examined if the estate amounts to five thousand dollars or more, or, if the estate amounts to less than this sum, by the county treasurer of the county or,

the city of New York by the comptroller of the city of New York, out of any court funds in his or her hands. § 81.33 Intermediate and final report.

(a) A guardian may nope in the court of his or her appointment for an order permitting him or her to render an intermediate report to the date

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of the filing thereof in a form prescribed by the court which shall include the same information as is required under section 81.31 of

this article. The court may order the report to be filed with the clerk of the court on or before a fixed date.

(b) When a guardian dies or is removed, suspended, discharged pursuant to the provisions of this article, or allowed to resign, the court shall order final report in a form prescribed by the court which shall include the same information as is required under section 81.31 of this article. When such a report has been made in the course of a proceeding to remove a guardian, the court may dispense with a further report.

(c) Notice of the filing of a report under this section shall be served upon the persons entitled to notice, pursuant to paragraph three of subdivision (c) of section 81.16 of this article. If the 'incapacitated person is deceased, notice shall also be served upon his

her executor or administrator, if any. (d) The

court may appoint counsel for the incapacitated person, if living, for the protection of such person's rights and interests with regard to such report. The court may appoint å referee to hear the matter and report to the court.

(e) Upon the motion for a confirmation of the report of the referee, or if the report is made before the court, upon the court's determination, the report shall be judicially approved and filed. The compensa; tion of the referee and of counsel shall be fixed by the court and shall be payable out of the estate of the incapacitated person unless it is determined that the incapacitated person is indigent.

(f) If the incapacitated person resides in a facility, hospital, school or an alcoholism facility, 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, or a residential health care facility or a general hospital as those terms are defined in section two thousand eight hundred one of the public health law, a copy of a report under this section shall be served upon the chief executive officer in charge of that facility and upon the mental hygiene legal service of the judicial department in which the residence is located. $ 81.34 Decree on filing instruments approving accounts.

(a) The guardian or the personal representative of the guardian may present to the court a petition showing the names and addresses of all persons entitled to receive notice pursuant to paragraph three of subdivision, (c) of section 81.16 of this article and showing that, to the extent the guardian is responsible for the property of the incapacitated person, all taxes have been paid or that no taxes are due and that the petitioner has fully reported and has made full disclosure in writing of all the guardian's actions affecting the property of the incapacitated person to all persons interested and seeking a decree releasing and discharging, the petitioner.

The petitioner shall also show that the incapacitated person has died or that the guardian has died, or has been removed, suspended, discharged pursuant to the provisions of this article, or allowed to resign.

(c) The petitioner shall also file with the petition acknowledged instruments executed by all persons interested or in the case of an infant,

or incapacitated person whose claim has been paid, by the guardian, or guardian receiving payment, approving the report of

the petitioner and releasing and discharging the petitioner.

(d) The court may thereupon make a decree releasing and discharging the petitioner and the sureties on his or her bond, if

from
further liability to the persons interested.
$ 81.35 Removal of guardian.

Upon motion, the court appointing & guardian may remove such guardian when the guardian fails to comply with an order, is guilty of miscon

for any other cause which to the court shall appear just. Notice of motion shall be served on the guardian and persons entitled to receive notice pursuant to paragraph three of subdivision (c) of section 81.16 of this article. The motion may be made by, the person examining initial and annual reports pursuant to section 81.32 of this article, or by any person entitled to commence a proceeding under this article, cluding the incapacitated person. The court may fix the compensation of EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

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any attorney or person prosecuting the motion. It may compel the guard-
ian to pay personally the costs of the motion if granted.
§ 81.36 Discharge or modification of powers of guardian.

(a) The court appointing the guardian shall discharge such guardian, or modify the powers of the guardian where appropriate, if it appears to the satisfaction of the court that:

1. the incapacitated person has become able to exercise some or all of the powers necessary to provide for personal needs or property management which the guardian is authorized to exercise;

2. the incapacitated person has become unable to exercise powers necessary to provide for personal needs or property management which the guardian is not authorized to exercise;

3. the incapacitated person dies; or

4. for some other reason, the appointment of the guardian is no longer necessary for the incapacitated person, or the powers of the guardian should be modified based upon changes in the circumstances of the incapacitated person.

(b). The application for relief under this section may be made by the guardian, the incapacitated person, or any person entitled to commence a proceeding under this article.

(c) There shall be a hearing on notice to the persons entitled to notice pursuant to paragraph three of subdivision (c) of section 81.16 of this article. If any party to the proceeding raises an issue of fact as to the ability of the incapacitated person to provide for his her personal needs

or property management and demands a jury trial of such 'issue, the court shall order a trial by jury thereof.

(d) To the extent that relief sought under this section would terminate the guardianship or restore certain powers

to the incapacitated person,

the burden of proof shall be on the person objecting to such relief! To the extent that relief sought under this section would further limit the powers of the incapacitated person, the burden shall be on the person seeking such relief.

(e) If the guardian is discharged because the incapacitated person becomes fully able to care for his or her property, the court shall der that there be restored to such person the property remaining in the hands of the guardian. If the incapacitated person dies, the guardian shall provide for such person's burial or other disposition the cost of which shall be borne by the estate of the incapacitated person. § 81.37 Resignation or suspension of powers of guardian.

(a) The court appointing a guardian may allow the guardian to resign or may suspend the powers of the guardian.

(b) Where a guardian is engaged in war service as defined in section seven hundred seventeen of the surrogate's court procedure act,

the court, upon motion

by

the guardian or any other person and upon such notice as the court may direct, may suspend the powers of the guardian until further order of the court. If the suspension will leave no other person acting as guardian, the motion shall seek the

appointment of a successor, When the suspended guardian becomes able to serve, he or she may be reinstated by the court upon motion and such notice as the court may direct. If the suspended guardian is reinstated, the court shall thereupon discharge his or her successor, who may be required to count, and make any other order as justice requires. § 81.38 Vacancy in office.

(a) Interim guardian. A vacancy created by the death, removal, discharge, resignation, or suspension of a guardian shall be filled by the court. Upon the application of

any person entitled to commence à proceeding under this article, the court shall appoint an interim guardian who shall

for a period of ninety days or until a final ac counting is filed and a successor guardian is appointed by the court: The powers and duties of the interim guardian shall be specifically enumerated in the order of appointment. The court may require service of the order to show cause seeking the appointment of an interim guardian on any persons it deems appropriate.

(b) Standby guardian. At the time of the appointment of the guardian, the court may in its discretion appoint a standby guardian to act in the event that

the guardian shall resign, die, be removed, discharged, suspended, or become incapacitated. The court may also appoint

alternate and/or successive alternates to the standby guardian, to act if the standby guardian shall resign, die, be removed, discharged, suspended, or become incapacitated. Such standby guardian, or the alternate in the event of the standby guardian's resignation, death, removal, discharge, suspension or ad judication of incapacity,' shall without further

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proceedings be empowered to immediately assume the duties of office im-
mediately upon resignation, death, removal, discharge, suspension or
ad judication of incapacity, of the guardian or the standby guardian
set forth in the order of appointment, subject only to the confirmation
of appointment by the court sixty days following the assumption of the
duties of the office. Before confirming the appointment of a standby
guardian, the court may conduct a hearing in accordance with the provi-
sions set forth in section 81.11 of this article upon petition of any
person entitled to commence a proceeding under this article.
§ 81.39 Guardian education requirements.

(a) Each incapacitated person is entitled to a guardian whom the court
finds to be sufficiently capable of performing the duties and exercising
the powers of a guardian necessary to protect the incapacitated person.

(b). Each person appointed by the court to be a guardian must complete & training program approved by the, chief administrator which covers:

1. the legal duties and responsibilities of the guardian;
2. the rights of the incapacitated person;

the available resources to aid the incapacitated person;
4. an orientation to medical terminology, particularly that related to
the diagnostic and assessment procedures used to characterize the extent
and reversibility of any impairment;

5. , the preparation of annual reports, including financial accounting for the property and financial resources of the incapacitated person. (c) The court

may,

in

its discretion, waive some or all of the requirements of this section or impose additional requirements. In doing So,

the court shall consider the experience and education of the guardian with respect to the training requirements of this section, the duties and powers assigned to the guardian, and the needs of the incapacitated person. $ 81.40 Court evaluator education requirements.

(a) Each incapacitated person is entitled to a court evaluator whom the court finds to be sufficiently capable of performing the duties of a court evaluator necessary to ensure that all the relevant information regarding a petition for the appointment of a guardian comes before the court and to assist the court in reaching a decision regarding the appointment of a guardian.

(b) Each person appointed by the court to be an evaluator must complete a training program approved by the chief administrator which

1. the legal duties and responsibilities of the court evaluator;

2. the rights of the incapacitated person with emphasis on the due process rights to aid the court evaluator in determining his her recommendation regarding the appointment of counsel and the conduct of the hearing;

3. the available resources to aid the incapacitated person;
4. an orientation to medical terminology, particularly that related to
the diagnostic and assessment procedures used to characterize the extent
and reversibility of any impairment;

5. entitlements;
6., psychological and

and social concerns relating to the disabled and
frail older adults.
(c) The court may,

in its discretion, waive some or all of the requirements of this section or impose additional requirements. In doing So, the court shall consider the experience and education of the court evaluator with respect to the training requirements of this section. $ 81.41 Court examiner education requirements.

(a) Each incapacitated person is entitled to a thorough examination of
all reports required to be filed by the guardian.

(b) "Each person appointed pursuant to section 81.32 of this article
must complete a training prograin approved by the chief administrator
which covers the legal duties and responsibilities of the examiner and
of guardians.
(c) The court may,

in its discretion, waive some or all of the requirements of this section or impose additional requirements.

In doing, the court shall consider the experience and education of the court examiner with respect to the training requirements of this section. EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

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§ 81.42 Compliance.

(a) A motion to dismiss based on the alleged failure to comply with any of the provisions of this article, other than subparagraph (i) of paragraph one of subdivision (d) of section 81.07 of this article, must be determined without regard to technical mistakes, deficiencies, and omissions that do not result in actual prejudice that affects the integrity of the proceeding

(b) A judgment or order made pursuant to this article, unless reversed on appeal, releases the guardian and the sureties from all claims of the incapacitated person and/or any person affected thereby based on any act or omission directly authorized, approved or confirmed in the judgment or order. This section does not apply where the judgment or order is obtained by fraud or conspiracy or by misrepresentation contained in the notice, petition, account,

in the judgment order as to any material fact. For purposes of this subdivision, misrepresentation of a material fact includes but is not limited to the omission of a material fact.

§ 4. Continuation of conservators and committees. Any orders, determinations or decisions of the appointing or a subsequent court under arti, cles 77 and 78 of the mental hygiene law, shall continue in force and effect until duly modified or abrogated by a judge pursuant to the new article 81 of the mental hygiene law. Wherever a statute uses the terms conservators or committees, such statute shall be construed to include the term guardian notwithstanding the provisions of this article unless the context otherwise requires.

§ 5. The Law Revision Commission shall undertake an evaluation and report concerning the effectiveness of article 81 of the mental hygiene law together with recommendations regarding its modification which shall be submitted to the governor and the legislature no later than the third anniversary date of the effective date of this bill.

5 6. This act shall take effect on the firs day of April next succeeding the date on which it shall have become a law.

NOTE. -Introduced at the request of the Law Revision Commission. See Leg. Doc. (1992) No. 65 (C)

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CHAPTER 699

AN ACT to amend the public health law, in relation to environmental

laboratory certification and penalties

Became a law July 31, 1992, with the approval of the Governor.

Passed by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Section 502 of the public health law, as amended by chapter 901 of the laws of 1984, subdivision 4 as amended and subdivision 5 as added by chapter 685 of the laws of 1989, is amended to read as follows:

§ 502. [Laboratories] Environmental laboratories; examinations; certificates of approval. 1. For the purposes of this section,

"environmental laboratory" is any facility that examines or is available for the examination of samples or specimens including, but not limited to: air, stack emissions, water, wastewater, surface water, ground water, recreational waters, swimming pools,

leachate, land runoff, solid waste, hazardous waste, soil, sediments and vegetation, as well as any substance that could contribute to

the pollution of or

that could be contaminated by material contained in such samples or specimens. Such examinations shall be limited to the qualitative or quantitative determinat ions of the biological, chemical, radiochemical or physical charac

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