Strategies in Preparing for a Guardianship Hearing
6.15.2026
The steps and strategy needed in preparing for a guardianship hearing were the focus of a recent New York State Bar Association continuing legal education course sponsored by its Elder Law and Special Needs section.
“Preparing for a Guardianship Hearing” is the third in a four-part series detailing key steps involved in preparing for a bench trial for the appointment of a guardian under Article 81. During the hour-long seminar, long time elder law and guardianship attorney Emily Ann Klotz provided tips on handling discovery, outlined steps in preparing a notice to admit and detailed common motions used in guardianship cases.
While it may seem obvious, Klotz says careful preparation of witnesses and the potential guardian is essential. Gather witnesses who will either support or contest the substance of the guardianship petition including friends, family, social workers, geriatricians and medical professionals. Investigate witnesses for any conflicts of interest and be aware of the relationship between the witness and the adult who is incapacitated.
Klotz encourages attorneys to conduct a background investigation into the proposed guardian to make sure they meet the qualifications. Does the guardian have the financial means and education needed to care for this person? Klotz related a story of a case in which the potential guardian was found to be a felon and could not be bonded.
“No one ever asked her if she was a felon. It was a mess. Check with your bonding company, check credit ratings, bankruptcies and make sure the guardian candidate understands the role and responsibilities of the job,” she warned.
Alert the court to any accommodation needed by a witness such as an interpreter, a hearing device or a video text display. Klotz reminds attorneys that it may take time for the court to secure the needed resources. She also advises attorneys to ask the court to keep witnesses out of the courtroom.
“If it’s an in-person trial, you have to remember to have the court exclude the witnesses from the courtroom before they testify because you don’t want one witness influencing the other witnesses,” Klotz said.
During the Hearing: Standards, Evidence and Experts
The standard of proof in guardianship hearings is “clear and convincing evidence,” which Klotz admits is a high standard. Attorneys must present evidence that supports the allegation that an incapacitated person cannot manage daily tasks, which include bathing, shopping and making their own medical decision. One must prove that the person will suffer harm without a guardian’s assistance in maintaining a home. Finally, one must prove that the person cannot understand their limitations.
“Lack of understanding here is key, the court requires proof that no less restrictive form of assistance is available,” explains Klotz. “If you want full guardianship, you have to show why this is needed and have those arguments ready before you go to trial.”
If an expert witness is being presented, Klotz says they will need extra preparation because they will be examined by attorneys from the other side. Outline the witnesses’ qualifications, including education, research and their connection to the case. They should be prepared to answer how they become involved with the case and be able to detail interactions with the incapacitated person.
“The other side is entitled to question the expert witness and once the expert survives the voir dire, you can state the witness opinions on the matter,” Klotz said.
The Elder Law and Special Needs Section will hold the fourth and final part of the series on guardianship on July 15.
