2006 New York Code - Hearing And Trial

 
  § 1754. Hearing and trial
    1.  Upon  a  petition  for the appointment of a guardian of a mentally
  retarded or developmentally disabled person 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  mentally
  retarded or developmentally disabled person, 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 mentally retarded or developmentally  disabled  person  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 mentally retarded or developmentally
  disabled  person  shall  be  present  unless  it  shall  appear  to  the
  satisfaction of  the  court  on  the  certification  of  the  certifying
  physician  that the mentally retarded or developmentally disabled person
  is medically incapable of being present to the extent that attendance is
  likely  to  result  in  physical  harm  to  such  mentally  retarded  or
  developmentally disabled person, or under such other circumstances which
  the  court  finds  would  not  be  in  the best interest of the mentally
  retarded or developmentally disabled person.
    4. If either a hearing is dispensed with pursuant to subdivisions  one
  and  two  of  this  section  or the mentally retarded or developmentally
  disabled person 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  mentally  retarded or developmentally disabled person. The guardian
  ad litem or mental hygiene legal service attorney, if  appointed,  shall
  personally  interview  the mentally retarded or developmentally disabled
  person 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 mentally retarded or  developmentally  disabled  person
  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.