§ Â 3909. Hearing on petition.

(a) The hearing on a petition for involuntary protective services must be held under all of the following conditions:

(1) An individual needing protective services must be present unless the individual has knowingly and voluntarily waived the right to be present or unless, because of physical or mental incapacity, the individual cannot be present without endangering the individual welfare. Waiver or incapacity may not be presumed from nonappearance but must be determined on the basis of factual information that counsel or an Adult Protective Services caseworker supplies to the Court.

(2) An individual needing protective services has the right to counsel regardless of the individual’s presence at the hearing. If the individual is indigent or lacks the capacity to waive counsel, the Court shall appoint counsel. If the individual is indigent, the Court shall assess reasonable attorneys’ 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, funds must be drawn from the budget for the Division of Services for Aging and Adults with Physical Disabilities upon an order directing payment signed by the Court.

(3) An individual needing protective services has the right to all of the following:

a. At the expense of the individual or, if indigent, at the expense of the State, to secure an independent medical or psychological examination relevant to the issue involved in a hearing under this section.

b. Have presented a report of an independent evaluation under paragraph (a)(3)a. of this section or to have the Court hear the evaluator’s personal testimony as to the condition and circumstances of the individual as a part of the evidence presented on the behalf of the individual at the hearing.

c. Have witnesses and evidence subpoenaed on behalf of the individual and have presented at the hearing witnesses and evidence in support of the position of the individual as the individual desires.

(b) The Court shall record a statement of its findings in support of an order for emergency services.