(a) The hearing on a petition for involuntary protective services shall be held under the following conditions:
(1) The person needing protective services shall be present unless the person has knowingly and voluntarily waived the right to be present or unless, because of physical or mental incapacity, the person cannot be present without endangering the person’s welfare. Waiver or incapacity may not be presumed from nonappearance but shall be determined on the basis of factual information supplied to the Court by counsel or a caseworker.
(2) The person who is impaired has the right to counsel whether or not the person is present at the hearing. If the person is indigent or lacks the capacity to waive counsel, the Court shall appoint counsel. Where the person is indigent, the Court shall assess reasonable attorney’s fees, such as are customarily charged by attorneys in this State for comparable services. To the extent that funding for this purpose is budgeted and available, such funds shall be drawn from the budget for adult protective services upon an order directing payment signed by the Court.
(3) The person who is impaired has the right at the expense of the person who is impaired or, if indigent, at the expense of the State, to secure an independent medical and/or psychological examination relevant to the issue involved in any hearing under this section, and to have presented a report of this independent evaluation or to have the Court hear the evaluator’s personal testimony as to the condition and circumstances of the person who is impaired as a part of the evidence presented in the behalf of the person who is impaired at the hearing. The person who is impaired shall have the right to have witnesses and evidence subpoenaed in the behalf of the person who is impaired and to have presented at the hearing such witnesses and evidence in support of the position of the person who is impaired as the person who is impaired desires.
(b) The Court shall record a statement of its findings in support of any order for emergency protective services.
63 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 378.
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