N.Y. Mental Hygiene Law § 81.43: Proceedings to discover property withheld

§ 81.43 Proceedings to discover property withheld.

(a) To the extent that it is consistent with the authority otherwise

granted by the court a guardian may commence a proceeding in the court

which appointed the guardian to discover property withheld. The petition

shall contain knowledge, or information and belief of any facts tending

to show that any interest in real property or money or other personal

property, or the proceeds or value thereof, which should be delivered

and paid to the guardian, is in the possession, under the control, or

within the knowledge or information of respondent who withholds the same

from the guardian, whether such possession or control was obtained

before or after the appointment of the guardian, or that the respondent

refuses to disclose knowledge or information which such person may have

concerning the same or which will aid the guardian in making discovery

of such property. The petition shall request that respondent be ordered

to attend an inquiry and be examined accordingly and deliver property of

the incapacitated person if it is within his or her control. The

petition may be accompanied by an affidavit or other written evidence,

tending to support the allegations thereof. If the court is satisfied on

the papers so presented that there are reasonable grounds for the

inquiry, it must make an order accordingly, which may be returnable

forthwith, or at a future time fixed by the court, and may be served at

any time before the hearing. If it shall appear from the petition or

from the answer interposed thereto, or in the course of the inquiry made

pursuant to the order that a person other than the respondent in the

proceeding claims an interest in the property or the proceeds or the

value thereof, the court may by the original order or by supplemental

order, direct such additional party to attend and be examined in the

proceeding in respect of his or her adverse claim, and deliver the

property if in his or her control or the proceeds or value thereof.

Service of such an order must be made by delivery of a certified copy

thereof to the person or persons named therein and the payment or

tender, to each of the sum required by law to be paid or tendered to a

witness who is subpoenaed to attend a trial in such court.

(b) If the person directed to appear submits an answer denying any

knowledge concerning or the possession of any property which belongs to

the incapacitated person or should be delivered to the guardian, or

shall make default in answer, he or she shall be sworn to answer truly

all questions put to him or her regarding the inquiry requested in the

petition. Any claim of title to or right to the possession of any

property of the incapacitated person must be made by verified answer in

writing. If such answer is interposed, the issues raised thereby shall

be tried according to the usual practice of the court as a litigated

issue but the interposition of such answer shall not limit the right of

the guardian to proceed with the inquiry in respect of property not so

claimed by the verified answer. If possession of the property is denied,

proof on that issue may be presented to the court by either party. The

court may in an appropriate case make interim decrees directing the

delivery of property not claimed by verified answer and may continue the

proceeding for determination of any litigated issue. If it appears that

the guardian is entitled to the possession of the property, the decree

shall direct delivery thereof to the guardian or if the property shall

have been diverted or disposed of, the decree may direct payment of the

proceeds or the value of such property or may impress a trust upon said

proceeds or make any determination which a court of equity might decree

in following trust property funds. In any case in which a verified

answer is served and the court after a trial or hearing determines the

issue, the court may in its discretion award costs not exceeding fifty

dollars and disbursements to be paid by the unsuccessful party.