This blog has often discussed the issue of financial exploitation of the elderly. It is an ongoing and real problem. One way to protect loved ones from falling victim to the acts of a stranger or even another family member is guardianship. In these matters, the need for a guardianship order is immediate. In “normal times,” upon the filing of a petition for guardianship, our Probate Division promptly schedules an evidentiary hearing to take evidence. Indeed, a petitioner must demonstrate beyond a reasonable doubt that a proposed ward is incapacitated and that there is a need to protect the proposed ward from some substantial harm. The court must also determine that there is no reasonable lesser restrictive alternative to guardianship. Usually, a petitioner puts appropriate evidence of incapacity before the court at an in-person hearing.
But, will the Probate Division hold a hearing and issue a guardianship order if it is unable to hold an in-person evidentiary hearing? Over the past six months, our courts have essentially shut down for most in-person hearings. Our Probate Division has been forced to be somewhat creative in holding guardianship hearings, which are required before a guardianship order may issue. In short, if you believe a guardianship is necessary for a loved one, you should not hesitate to file the petition.
The court may hold an evidentiary hearing over the telephone. Although this is not ideal, the court is able to take testimony and parties can submit documentary evidence to the court in advance of the hearing. Evidentiary hearings over the telephone come with their challenges. Witnesses must be prepared. It becomes all the more important for a petitioner to be well- organized in the presentation of testimony and documents. In presenting a case, a petitioner must think through the issues that would not otherwise present themselves at an in-person hearing. Does the proposed ward have an adequate telephone set-up? Can the proposed ward hear without a special phone? How will you question witnesses if they are not in the room in front of you? Counsel for the proposed ward will also need to consider how to meet with the proposed ward in advance of the hearing. If the proposed ward is in fact elderly and in some type of assisted living facility, it may be impossible to meet in person. Scheduling a telephone call or a video conference call may be the best alternative.
As we move along during these COVID times, individual courthouses are gradually allowing in-person hearings. Hopefully such in-person hearings will include guardianship matters. But these in-person hearings will bring their own challenges. An elderly proposed ward may by definition be more susceptible to the Coronavirus and precautions must be implemented. Again, a petitioner and counsel for the ward must think through ways to protect the proposed ward and others. Contact the court clerk to inform yourself of the protocol at the individual court, as protocol for in-person hearings differ from county to county.
