N.Y. Mental Hygiene Law § 81.11: Hearing

§ 81.11 Hearing.

(a) A determination that the appointment of a guardian is necessary

for a person alleged to be incapacitated shall be made only after a

hearing.

(b) In a proceeding brought pursuant to this article any party to the

proceeding shall have the right to:

1. present evidence;

2. call witnesses, including expert witnesses;

3. cross examine witnesses, including witnesses called by the court;

4. be represented by counsel of his or her choice.

(c) The hearing must be conducted in the presence of the person

alleged to be incapacitated, either at the courthouse or where the

person alleged to be incapacitated resides, so as to permit the court to

obtain its own impression of the person's capacity. If the person

alleged to be incapacitated physically cannot come or be brought to the

courthouse, the hearing must be conducted where the person alleged to be

incapacitated resides unless:

1. the person is not present in the state; or

2. all the information before the court clearly establishes that (i)

the person alleged to be incapacitated is completely unable to

participate in the hearing or (ii) no meaningful participation will

result from the person's presence at the hearing.

(d) If the hearing is conducted without the presence of the person

alleged to be incapacitated and the court appoints a guardian, the order

of appointment shall set forth the factual basis for conducting the

hearing without the presence of the person for whom the appointment is

made.

(e) If the hearing is conducted in the presence of the person alleged

to be incapacitated and the person is not represented by counsel, the

court shall explain to that person, on the record, the purpose and

possible consequences of the proceeding, the right to be represented by

counsel and the fact that the court will appoint an attorney to

represent the person alleged to be incapacitated if the person wishes to

be represented by counsel, and shall inquire of the person whether he or

she wishes to have an attorney appointed. 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.

(f) If on or before the return date designated in the order to show

cause the alleged incapacitated person or counsel for the alleged

incapacitated person raises issues of fact regarding the need for an

appointment under this article and demands a jury trial of such issues,

the court shall order a trial by jury thereof. Failure to make such a

demand shall be deemed a waiver of the right to trial by jury.