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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

 

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