Section 464-A:8 Conduct of Hearing.
I. If the proposed ward is within the state and able to attend, he or she must be present at the hearing unless excused under the provisions of this chapter. If the proposed ward is not within the state, but is a resident of the state, and if the court determines that his or her attendance at the hearing is in the best interest of the proposed ward, the court may order him or her to attend the hearing.
II. The court may waive personal attendance of the proposed ward at the hearing when the petitioner or the counsel for the proposed ward files a written statement with the court at least 24 hours prior to the hearing indicating that the proposed ward does not express a desire to attend the hearing; provided, however, that upon a showing that the proposed ward first expressed a desire not to attend the hearing at such a time as to make it unreasonable to require the filing of the written statement at least 24 hours prior to the hearing, then the court may waive personal attendance of the proposed ward at the hearing upon the filing of the required written statement at any time up to the time of the hearing. Any statement filing in connection with a hearing under this paragraph shall include a physician's affidavit indicating that the overall physical, emotional, or psychological condition of the proposed ward is such that he or she is likely to suffer harm or that the proposed ward has no ability to understand the nature and consequences of the proceedings.
II-a. If the proposed ward fails to attend the hearing, and if the proposed ward's attendance is not waived by the court under the provisions set forth in paragraph II, the court may continue the hearing and order the proposed ward to attend the continued hearing. The continued hearing shall be held within 30 days thereafter. The court may waive personal attendance of the proposed ward at the continued hearing when the petitioner or the counsel for the proposed ward files a written statement with the court at least 24 hours prior to the continued hearing indicating that the proposed ward does not express a desire to attend the continued hearing; provided, however, that upon a showing that the proposed ward first expressed a desire not to attend the continued hearing at such a time as to make it unreasonable to require the filing of the written statement at least 24 hours prior to the continued hearing, then the court may waive personal attendance of the proposed ward at the continued hearing upon the filing of the required written statement at any time up to the time of the continued hearing.
III. The medical affidavit shall be evidence only of the proposed ward's inability to attend the hearing and shall not be considered in determining his or her incapacity. If the proposed ward is a patient at a county nursing home, state hospital or Laconia developmental services, the affidavit shall be by the medical director or medical superintendent of such county nursing home, state hospital, or developmental services.
IV. The rules of evidence shall apply and no hearsay evidence which is not otherwise admissible in a court of law shall be admitted into evidence except as otherwise provided in this chapter. In such proceedings, there is a legal presumption of capacity, and the burden of proof shall be on the petitioner to prove the allegations set forth in the petition by competent evidence. Such proof must be established beyond reasonable doubt that the proposed ward is incapacitated and in need of a guardian.
V. A record of the proceedings shall be made if requested by the proposed ward or the proposed ward's attorney, or when ordered by the court.
VI. Records, reports and evidence submitted to the court or recorded by the court shall be confidential only insofar as they directly relate to alleged specific functional limitations of the proposed ward.
VII. The issue as to whether a guardian should be appointed for the proposed ward shall be determined by the court at a closed hearing unless the proposed ward or counsel for the proposed ward otherwise requests.
Source. 1979, 370:1. 1981, 564:5. 1986, 123:1. 1988, 107:3, eff. June 17, 1988.