A New York Alleged Incapacitated Person Cannot Be Forced To Testify

A New York Guardianship proceeding requires a hearing before the Court

. Mental Hygiene Law (MHL) section 81.11 states, in part, that "a determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after a hearing."

MHL Section 81.02 provides that the appointment of a Guardian must be based upon "clear and convincing evidence." Typically, at such hearings, individuals who have had personal contact with the alleged incapacitated person ("AIP") can testify as to their observations as to the AIP's ability to engage in activities of daily living. Such testimony can also relate to various events that have occurred concerning the AIP such as the AIP forgetting where he or she lived or experiencing hallucinations. These types of events may indicate a loss of capacity.

The guardianship attorney for the petitioner usually calls these witnesses to testify in Court and can present other evidence in the form of documents that may show incapacity such as unusual transfer of assets. Of course the AIP has a right to oppose the petitioner's request for Guardianship. As provided in MHL 81.11 the AIP can call his or her own witnesses, be represented by an attorney and cross examine witnesses.

In some cases, especially where there are few third party witnesses to the AIP's activities, a petitioner may want to have the AIP testify to demonstrate to the Court that the AIP lacks capacity. By using in-court testimony, the petitioner can try and show that the AIP lacks the ability to understand or appreciate his or her medical or personal needs or is unable to demonstrate the ability to recall or handle finances. These situations have resulted in a controversy as to whether the AIP, like a criminal defendant, has the right to refuse to testify against him or herself.

The recent case of Matter of G.P., decided by Judge James D. Pagones of the New York State Supreme Court, Dutchess County on July 26, 2012, involved this issue. Judge Pagones determined that since the appointment of a Guardian resulted in the loss of certain individual freedoms and liberties, such as making medical decisions and determining where to live, an AIP cannot be "compelled to testify as a witness for the petitioner...."

When representing a petitioner in a Guardianship proceeding, particularly where the Guardianship is contested, I work closely with the client to determine the witnesses who can best tell the Court, based upon personal knowledge, about the AIP's ability to handle their personal affairs and property management. The decision in Matter of G.P. demonstrates that a petitioner cannot rely on just presenting the AIP to the Court, but must have competent independent witnesses to meet the "clear and convincing" proof required for a Guardianship appointment.

by: Jules Martin Haas, Attorney at Law

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