What Happens after an Article 81 Case is Filed

After the petitioner files an Article 81 case, the court will schedule a hearing. The hearing will take place no more than 28 days from the date the judge signs the order to show cause form. On the order to show cause form, the court will appoint an individual to serve as court evaluator. The court evaluator will be expected to:

1. speak with alleged incapacitated person (AIP) and explain the reason why the petitioner is asking the judge to appoint a guardian as well as the possible consequences of such an appointment
2. investigate the claims made in the application, and
3. submit a written report to the court

The court evaluator may be an attorney or social worker, or any other person trained to do this task.

Under certain circumstances, the court may decide to appoint an attorney for the alleged incapacitated person, to protect their interests. If needed, the judge can also appoint a temporary guardian before the hearing.

 

Hearing

A hearing is a formal proceeding where all sides appear in court together. In an Article 81 hearing, the following people will appear:

• the judge
• the alleged incapacitated person
• the petitioner
• the court evaluator
• the attorney representing the alleged incapacitated person (if any)
• certain relatives of the alleged incapacitated person, and
• other persons and organizations concerned about the alleged incapacitated person

At the hearing, the petitioner must prove that the alleged incapacitated person needs a guardian. Although there is typically no jury, the alleged incapacitated person may request that the judge and a jury hear the case.

The alleged incapacitated person will not have to testify at the hearing. However, the petitioner and the court evaluator will have to testify, and family members and other potential witnesses may testify. Additionally, the attorney appointed to represent the alleged incapacitated person (if any) and the petitioner’s attorney (if any) will present evidence and ask questions.

At the conclusion of the Article 81 hearing, the judge will consider the testimony and evidence presented to decide:

• Whether the alleged incapacitated person is unable to manage their property or take care of their personal needs
• Whether the alleged incapacitated person is unable to appreciate the consequences of not being able to care for their property or personal needs, and
  if the above factors are true, then:
  • what may be the least restrictive solution to protect this person’s well-being and interest. A least restrictive solution allows the person to receive needed help while also making sure that they maintain independence, where possible.

If the judge decides to appoint a guardian, the judge will issue a decision stating:

• whether the guardian will manage the person’s property, person or both
• whether more than one guardian should be appointed
• whether the guardian(s) will serve on a temporary and/or permanent basis
• what specific powers the guardian(s) will have