§ 81.11 Hearing.\n (a) A determination that the appointment of a guardian is necessary\nfor a person alleged to be incapacitated shall be made only after a\nhearing.\n (b) In a proceeding brought pursuant to this article any party to the\nproceeding shall have the right to:\n 1. present evidence;\n 2. call witnesses, including expert witnesses;\n 3. cross examine witnesses, including witnesses called by the court;\n 4. be represented by counsel of his or her choice.\n (c) The hearing must be conducted in the presence of the person\nalleged to be incapacitated, either at the courthouse or where the\nperson alleged to be incapacitated resides, so as to permit the court to\nobtain its own impression of the person's capacity. If the person\nalleged to be incapacitated physically cannot come or be brought to the\ncourthouse, the hearing must be conducted where the person alleged to be\nincapacitated resides unless:\n 1. the person is not present in the state; or\n 2. all the information before the court clearly establishes that (i)\nthe person alleged to be incapacitated is completely unable to\nparticipate in the hearing or (ii) no meaningful participation will\nresult from the person's presence at the hearing.\n (d) If the hearing is conducted without the presence of the person\nalleged to be incapacitated and the court appoints a guardian, the order\nof appointment shall set forth the factual basis for conducting the\nhearing without the presence of the person for whom the appointment is\nmade.\n (e) If the hearing is conducted in the presence of the person alleged\nto be incapacitated and the person is not represented by counsel, the\ncourt shall explain to that person, on the record, the purpose and\npossible consequences of the proceeding, the right to be represented by\ncounsel and the fact that the court will appoint an attorney to\nrepresent the person alleged to be incapacitated if the person wishes to\nbe represented by counsel, and shall inquire of the person whether he or\nshe wishes to have an attorney appointed. If the person refuses the\nassistance of counsel, the court may nevertheless appoint counsel if the\ncourt is not satisfied that the person is capable of making an informed\ndecision regarding the appointment of counsel.\n (f) If on or before the return date designated in the order to show\ncause the alleged incapacitated person or counsel for the alleged\nincapacitated person raises issues of fact regarding the need for an\nappointment under this article and demands a jury trial of such issues,\nthe court shall order a trial by jury thereof. Failure to make such a\ndemand shall be deemed a waiver of the right to trial by jury.\n
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