Legislation

Search OpenLegislation Statutes
This entry was published on 2016-07-29
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 1754
Hearing and trial 1
Surrogate's Court Procedure Act (SCP) CHAPTER 59-A, ARTICLE 17-A
§ 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.