You are here: / / Article 81 Guardianship Hearing Should Not Have Been Held in the Absence...

Article 81 Guardianship Hearing Should Not Have Been Held in the Absence of the Alleged Incapacitated Person; Counsel Should Have Been Appointed for the Alleged Incapacitated Person

The Second Department determined a hearing pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of an alleged incapacitated person should not have been held in the absence of the alleged incapacitated person.  The court further held counsel should have been appointed for the alleged incapacitated person:

The Supreme Court erred in conducting a hearing in the appellant’s absence. There was no evidence presented at the hearing that the appellant was unable to be present in court, that she was unable to participate in the hearing, or that no meaningful participation would result from her presence … . Furthermore, the court failed to set forth in the resulting order and judgment of appointment a sufficient factual basis for conducting the hearing without the appellant being present (see Mental Hygiene Law § 81.11[d]…).

Moreover, since there was no evidence that the appellant made an informed decision to refuse the assistance of counsel, the Supreme Court should have appointed counsel to represent her… Matter of Gulizar NO (Rudy O), 2013 NY Slip Op 07489, 2nd Dept 11-13-13

 

You might also like
Curtailing of Defense Counsel’s Summation Argument Re: Lack of Motive Was (Harmless) Error
Co-Tenant Acquired Entire Parcel by Adverse Possession
YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT).
EVEN THOUGH FATHER PAID WHAT HE OWED WHEN MOTHER FILED A PETITION FOR UNPAID CHILD SUPPORT, MOTHER WAS ENTITLED TO ATTORNEY’S FEES (SECOND DEPT).
WHERE RELEVANT FACTS ARE IN DISPUTE IN A CUSTODY MATTER, A HEARING IS REQUIRED; MATTER REMITTED (SECOND DEPT).
Padilla v Kentucky, Which Held Attorney’s Failure to Inform Client of Immigration Consequences of Plea Was Ineffective Assistance, Not Applied Retroactively Under New York Constitution
DEFENDANTS’ MEDICAL EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY BASED UPON THE MEDICAL RECORDS AND MATERIAL IN EVIDENCE DESPITE NOT HAVING PERSONAL KNOWLEDGE OF THE INJURIES; THE EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY ABOUT CAUSATION EVEN THOUGH THE ISSUE WAS NOT ADDRESSED IN THE EXPERT REPORT (SECOND DEPT).
Money Available to Father from Relatives for Children’s College Expenses Should Have Been Considered in Allocating those Expenses between Mother and Father

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Statutory Requirements for Recovery and Limits Imposed by Subrogation Explained;... Defendant Failed to Demonstrate Lack of Constructive Notice of Condition; Did...