How Do You Know What You Know?
A question that attorneys constantly throw at their clients is, “How do you know that?”
How you know what you know is extremely important in all legal matters, but it’s even more important when it comes to litigation, especially Article 81 guardianship proceedings.
If you’re thinking about starting a guardianship proceeding for someone you know, doing so is going to require submitting a petition that includes facts the Court is going to need in order to determine whether he or she should appoint a guardian.
And because every person who starts a guardianship proceeding is required to give testimony in Court regarding those facts, it’s important that most of the facts are based on personal knowledge: what you know based on what you’ve personally seen, heard, and read.
Conversely, the kind of information to avoid is what we lawyers call “hearsay.” No doubt you know about hearsay if you’ve ever watched more than about sixty seconds of Law & Order. What hearsay means, though, are facts or information that you think you know but you don’t really know to be true because you lack first-hand personal knowledge.
Here’s an example:
“Is Mary in the hospital?” Jane asked John.
“Yes,” John replied, “she was admitted to the hospital yesterday.”
If Jane were to testify that Mary is in the hospital, that would be hearsay because Jane has neither seen Mary in the hospital herself nor has Mary told Jane directly about her hospital admission. She only knows about Mary’s hospital admission from John so her knowledge is not first-hand.
In any legal proceeding, including guardianships, second-hand information is inadmissible. There are exceptions, of course, but the general rule is that hearsay cannot be offered as evidence.
The same hearsay rule applies to documents. Here’s an example of a common exchange our office holds with clients during guardianship consultations:
“My brother has been stealing from our mother,” Jill Client says.
“How do you know that?” the attorney asks. (There’s that question again.)
“Well, my sister has access to my mother’s accounts online. She told me that there are a lot of ATM withdrawals on my mother’s accounts but she never uses ATMs. It has to be my brother because my mother lives with him.”
“Did you see the statements yourself?”
“No, like I said, my sister saw them.”
While there’s no reason for Jill Client to not believe her sister, she cannot testify about the ATM withdrawals during a guardianship hearing because it’s hearsay – Jill herself has not seen the statements so what she knows of them is based on second-hand knowledge. In that situation, the best thing to do is for Jill to get copies of the statements herself to be used during the hearing to avoid the hearsay objection.
While it may sound simple, it’s usually a tough idea for clients to get behind because so much information we deal with in our personal and professional lives is hearsay. Joe said this. Mary saw that. It goes on and on. And because we don’t spend our lives in courtrooms where judges are quick to exclude hearsay, there’s no reason for us to sift through what’s hearsay and what isn’t.
The point is that, when considering whether you should start a guardianship proceeding for a friend or family member, doing so is going to require providing information that shows the person is unable to manage his or her day-to-day personal affairs and/or their financial matters. So when you think about the facts, be sure to ask yourself, “How do I know that?” Is what you know to be true based on your own personal observations or what someone else has told you?
The more personal knowledge you have regarding a person’s inability to manage his or er day-to-day personal affairs and/or their financial matter, the more likely you are to succeed in Court.