N.Y. Surrogate's Court Procedure Act § 1754: Hearing and trial 1

§ 1754. Hearing and trial

1. Upon a petition for the appointment of a guardian of a person who

is intellectually disabled or person who is developmentally disabled

eighteen years of age or older, the court shall conduct a hearing at

which such person shall have the right to jury trial. The right to a

jury trial shall be deemed waived by failure to make a demand therefor.

The court may in its discretion dispense with a hearing for the

appointment of a guardian, and may in its discretion appoint a guardian

ad litem, or the mental hygiene legal service if such person is a

resident of a mental hygiene facility as defined in subdivision (a) of

section 47.01 of the mental hygiene law, to recommend whether the

appointment of a guardian as proposed in the application is in the best

interest of the person who is intellectually disabled or person who is

developmentally disabled, provided however, that such application has

been made by:

(a) both parents or the survivor; or

(b) one parent and the consent of the other parent; or

(c) any interested party and the consent of each parent.

2. When it shall appear to the satisfaction of the court that a parent

or parents not joining in or consenting to the application have

abandoned the person who is intellectually disabled or person who is

developmentally disabled or are not otherwise required to receive

notice, the court may dispense with such parent's consent in determining

the need to conduct a hearing for a person under the age of eighteen.

However, if the consent of both parents or the surviving parent is

dispensed with by the court, a hearing shall be held on the application.

3. If a hearing is conducted, the person who is intellectually

disabled or person who is developmentally disabled shall be present

unless it shall appear to the satisfaction of the court on the

certification of the certifying physician that the person who is

intellectually disabled or person who is developmentally disabled is

medically incapable of being present to the extent that attendance is

likely to result in physical harm to such person who is intellectually

disabled or person who is developmentally disabled, or under such other

circumstances which the court finds would not be in the best interest of

the person who is intellectually disabled or person who is

developmentally disabled.

4. If either a hearing is dispensed with pursuant to subdivisions one

and two of this section or the person who is intellectually disabled or

person who is developmentally disabled is not present at the hearing

pursuant to subdivision three of this section, the court may appoint a

guardian ad litem if no mental hygiene legal service attorney is

authorized to act on behalf of the person who is intellectually disabled

or person who is developmentally disabled. The guardian ad litem or

mental hygiene legal service attorney, if appointed, shall personally

interview the person who is intellectually disabled or person who is

developmentally disabled and shall submit a written report to the court.

5. If, upon conclusion of such hearing or jury trial or if none be

held upon the application, the court is satisfied that the best

interests of the person who is intellectually disabled or person who is

developmentally disabled will be promoted by the appointment of a

guardian of the person or property, or both, it shall make a decree

naming such person or persons to serve as such guardians.