How does the petitioner in a guardianship proceeding sustain that burden of proof if the alleged incapacitated person (AIP) refuses to meet with the court evaluator, refuses to testify at a hearing, does not attend the hearing, or refuses to waive the physician-patient privilege as to medical records?
Mental Hygiene Law Article 81, the guardianship statute, is a Janus-like creature that has at its core the contradictory notions of an adversarial model and a paternalistic model. The statute is at war with itself. One side views the proceeding as traditional litigation which may be won on technical grounds. The opposing side views the proceeding as one to meet the “best interest” of the AIP, ignoring rules of evidence. This dichotomy is most clearly illustrated by the question of whether the object of a guardianship proceeding can be required to testify against himself or herself.
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