1. The Laws of New York
  2. Consolidated Laws
  3. Mental Hygiene
  4. Title E: General Provisions
  5. Article 81: Proceedings for Appointment of a Guardian for Personal Needs or Property Management


Section 81.11 Hearing

Mental Hygiene (MHY)

  (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.