§ 1754 — Hearing and trial 1

§ 1754. Hearing and trial\n 1. Upon a petition for the appointment of a guardian of a person who\nis intellectually disabled or person who is developmentally disabled\neighteen years of age or older, the court shall conduct a hearing at\nwhich such person shall have the right to jury trial. The right to a\njury trial shall be deemed waived by failure to make a demand therefor.\nThe court may in its discretion dispense with a hearing for the\nappointment of a guardian, and may in its discretion appoint a guardian\nad litem, or the mental hygiene legal service if such person is a\nresident of a mental hygiene facility as defined in subdivision (a) of\nsection 47.01 of the mental hygiene law, to recommend whether the\nappointment of a guardian as proposed in the application is in the best\ninterest of the person who is intellectually disabled or person who is\ndevelopmentally disabled, provided however, that such application has\nbeen made by:\n (a) both parents or the survivor; or\n (b) one parent and the consent of the other parent; or\n (c) any interested party and the consent of each parent.\n 2. When it shall appear to the satisfaction of the court that a parent\nor parents not joining in or consenting to the application have\nabandoned the person who is intellectually disabled or person who is\ndevelopmentally disabled or are not otherwise required to receive\nnotice, the court may dispense with such parent's consent in determining\nthe need to conduct a hearing for a person under the age of eighteen.\nHowever, if the consent of both parents or the surviving parent is\ndispensed with by the court, a hearing shall be held on the application.\n 3. If a hearing is conducted, the person who is intellectually\ndisabled or person who is developmentally disabled shall be present\nunless it shall appear to the satisfaction of the court on the\ncertification of the certifying physician that the person who is\nintellectually disabled or person who is developmentally disabled is\nmedically incapable of being present to the extent that attendance is\nlikely to result in physical harm to such person who is intellectually\ndisabled or person who is developmentally disabled, or under such other\ncircumstances which the court finds would not be in the best interest of\nthe person who is intellectually disabled or person who is\ndevelopmentally disabled.\n 4. If either a hearing is dispensed with pursuant to subdivisions one\nand two of this section or the person who is intellectually disabled or\nperson who is developmentally disabled is not present at the hearing\npursuant to subdivision three of this section, the court may appoint a\nguardian ad litem if no mental hygiene legal service attorney is\nauthorized to act on behalf of the person who is intellectually disabled\nor person who is developmentally disabled. The guardian ad litem or\nmental hygiene legal service attorney, if appointed, shall personally\ninterview the person who is intellectually disabled or person who is\ndevelopmentally disabled and shall submit a written report to the court.\n 5. If, upon conclusion of such hearing or jury trial or if none be\nheld upon the application, the court is satisfied that the best\ninterests of the person who is intellectually disabled or person who is\ndevelopmentally disabled will be promoted by the appointment of a\nguardian of the person or property, or both, it shall make a decree\nnaming such person or persons to serve as such guardians.\n