Guardianship Book Chapter 4: Presenting the Case and Development of Evidence

Burden of Proof
“In conservatorship cases, it is the petitioner’s burden to prove by clear and convincing evidence that the proposed ward is a “disabled person.” In re Conservatorship of Groves, 109 S.W.3d 317, 330 (Tenn. Ct. App. 2003). With this heightened standard of proof, the evidence should produce “a firm belief or conviction regarding the truth of the factual propositions sought to be established by the evidence” in the fact-finder’s mind. In re Conservatorship of Carnahan, 2011 Tenn. App. 113 (2011). Clear and convincing evidence is required due to the value society places on individual autonomy and self-determination. Id.

Rules
Be mindful of procedural and other rules. For example, in Georgia, only the following persons have a right of appeal: the Ward, the ward’s personal representative or guardian ad litem, or the petitioner. Accordingly, if an interested party merely objects, or intervenes, without filing a cross petition, then the intervener or objector’s appeal will be dismissed. See Twitty v. Akers, 218 Ga. App. 467 (1995).

Similarly, a guardian ad litem may presume that he or she represents the Ward. In Georgia, the rules specifically provide that a guardian ad litem cannot represent a ward. For that reason, any pleading filed by a guardian ad litem allegedly for the ward should be scrutinized.

Unless provided to the contrary by Code Section 9-11-81 or by Titles 29 and 53, the general laws and rules of practice, pleading, procedure, and evidence that are applicable to the superior courts of this state shall be applicable to and govern in civil cases in the probate courts. O.C.G.A. § 15-9-122. See also O.C.G.A. § 29-4-12(d)(3); § 29-5-12(d)(3); Uniform Probate Court Rules.

Gathering Evidence: Discovery
Informal and formal discovery are available in Georgia guardianship cases. Informal discovery includes interviewing witnesses and dumpster diving for available information, both from friendly parties and from public sources. For example, deeds are a matter of public record; therefore, if proof of inappropriate conduct included land transfers made under undue influence, then copies of the inappropriate deeds could be secured using informal discovery.

Informal discovery is not rule-bound and may begin at any time. “The starting point though is usually with the leads given by the client. The client may have some idea of the identity of other witnesses or involved parties. The client can give you information about where the occurrence in question took place to permit a viewing of the scene. The client may also turn over documents that reference other documents in the possession of third parties that might be obtained on request. Beyond these client-directed sources, think in terms of finding relevant people, documents and tangible evidence using common sense and any real-world experiences. So how do you decide what to look into? Go back and look at how you first analyzed the case, the seeds of where you need to conduct informal discovery are planted there.” (Note 1)

The formal rules permit depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. O.C.G.A. § 9-11-26(a). Generally, the scope of discovery reaches “any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” O.C.G.A. § 9-11-26(b).

Medical records are likely relevant in guardianship or conservatorship and can be secured using Rule 34 (O.C.G.A. § 9-11-34).Rule 34(c)(1) authorizes issuance of a request to produce to a non-party. Where medical records are sought, parties must comply with the privacy rules associated with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 USC § 1320d and 45 CFR § 160-164. The rules authorize parties to access medical records when a qualified protective order has been entered. 45 C.F.R. § 164.512(e). A “qualified protective order” is defined as one that: (A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and (B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. 45 C.F.R. § 164.512(e)(1)(v).

Medical and mental examinations may be compelled under Rule 35.

Telling Your Client’s Story
Every case has a story. “If we are to be successful in presenting our case we must not only discover its story; we must become good storytellers as well. Every trial, every . . . argument for justice is a story.” (Note 2). It should be humanity in the raw.

The story must be compelling. How you tell your client’s story will turn on whether you are prosecuting or defending the guardianship case. The story should have a theme (presumably built around the legal issues outlined in this paper). Your theme must tell the fact finder why a decision in your client’s favor is critical; the consequences must matter.

Your client’s story should create a live event for the fact finder, drawing the fact finder into the circumstances of your client’s case. The story should be broken down into elements. (Note 3). Eliminate unnecessary elements that confuse the fact finder or diminish the impact of the story. Also, keep in mind that, unlike traditional story-telling your only opportunity to speak is during opening and closing. For that reason, must you know how to tell your client’s story, but you must also know how to orchestrate the evidence to accomplish your story telling goals.

The following storytelling pointers appear on the Wheel Council website (Note 4):

1. Plant your feet and get a comfortable, confident posture to begin.
2. Take a breath and make eye contact with a friendly face before beginning.
3. Eliminate “uhs” by pausing periodically when you are speaking.
4. Image the story in your mind and describe what you see.
5. Focus on perceptual details (colors, sounds, tastes, smells, movements).
6. If you rock or move your hands in a repetitive way, make the movements fit with the story’s rhythm.
7. Surprise the audience with a few dramatic or sudden movements.
8. Be yourself and speak from your heart.

One story telling website, in discussing the use of metaphors, suggests that you follow the “ten-year old rule.” Ask yourself if you could explain your story to a ten year old. If the answer is “no,” then rework your story. (Note 5).

In the case of Mr. Jones, the story might begin with Mr. Jones taking the stand and recounting his relationship with his mother. His relationship might be a close relationship, or it might be a story where he was distant and has been pulled back into her life due to the present situation. Mr. Jones might recount how his mother has lived independently for years, making her own decisions, or he might recount how she has relied on a support structure that has crumbled. In either case, the story should provide the court with a base-line for evaluating the present circumstances as you apply the law to the facts. The story should inform the court of changes that have occurred in the putative ward’s life which impair her decision-making ability. What is different from when the putative ward was able to live independently? What is going on in mom’s life that makes a guardianship or conservatorship appropriate at this time? What danger has she been exposed to? What are the decisions she struggles with?

The story in In re Groves was particularly compelling. Ellen Groves, an 88 year old widow, had no children. During her marriage, she was a virtual slave to her husband and “had no happy life whatsoever.” As frailty crept up on Ellen and her husband (R.C.), they began relying on help from others in attempting to remain independent and at home. In particular, they relied on R.C.’s brother, Glendon Groves.

In 1994, after R.C. fell and broke three ribs, he and Glendon devised a scheme to protect R.C.’s resources from depletion paying for medical expenses. The scheme, which the Groves court described as Medicaid fraud, allegedly included conveying assets to Glendon for safe-keeping. When R.C. became ill, requiring medical assistance, a Medicaid application was filed without disclosing the conveyances, or the existence of other assets.

After R.C. died in 1995, Ellen continued living at home with support from Glendon and his wife. Other relatives were discouraged from visiting, effectively isolating Ellen. By 1997, following a fall and fractured spine, Ellen was completely dependent on Glendon and his wife. They moved her into their home, providing her meals, lodging and care. After about three months, Ellen allegedly decided to give her real property to Glendon. Deeds were prepared by Glendon’s lawyer and Ellen signed them while sitting in a rocking chair on Glendon’s front porch.

Harmony at Glendon’s home was short-lived, however. Less than a year after Ellen conveyed away her property, Glendon and his wife placed Ellen in a nursing home. They claimed she had become hostile and paranoid. Ellen was upset by this decision, expressing herself, and Glendon began visiting the nursing home less frequently. Around this time, two nieces, Marlene Proctor and Cheryl Travis, began visiting. Ellen told them that Glendon and his wife had taken all of her money and placed her in a nursing home.

On March 11, 1998, Glendon filed a petition for conservatorship over Ellen. Ms. Proctor and Ms. Travis filed and objection and cross-petition alleging that Glendon took Ellen’s funds for his own use. During the course of the litigation, six clinicians examined Ellen, collectively reporting that her functional capacity was significantly compromised, that her decision-making capacity was significantly impaired and that she was progressively deteriorating. Against this background, the court was called upon to determine (1) whether a conservatorship should be imposed and (2) whether Glendon should be required to disgorge the conveyed assets.

The story in Groves drove the result. The story in your case should do the same.

Witnesses, generally
In In re Cash, 298 Ga. App. 110 (2009), lay testimony formed the basis of the court’s decision to impose a guardianship and conservatorship. The sons of Louise Altobellis Cash, a 94 year old resident at an assisted living facility, filed a petition alleging that Ms. Cash suffered from memory problems and that she could not make or communicate significant responsible decisions. Specifically, she refused to move to a floor in the assisted living facility that would afford her 24-hour assistance and supervision, and was refusing to pay bills she incurred for private nursing care. One of Ms. Cash’s sons, Julian, testified that he received calls from his mother’s creditors regarding her failure to pay bills, including those for private care his mother had received. Julian apparently related hearsay (without objection) (Note 6) that he spoke with the ALF’s executive director about billing issues and that, during that conversation, other behavioral issues were related. Several months later, Julian received a copy of an eviction notice Sunrise had sent to his mother. He again spoke with Sunrise’s executive director, who discussed with him the behavioral incidents and other issues that led to a planned eviction. Julian testified that when his mother entered the ALF six years earlier, she was able to walk, but that she was now confined to a wheelchair. Because of her physical condition, his mother had hired a number of sitters to stay with her during the overnight hours, but she had fired most of them and “she’s gotten to the point where it’s hard to get a sitter to stay with her all night.” Accordingly, the ALF had asked Mrs. Cash to move to a different floor of the facility, which would provide nursing care 24 hours a day, but she refused to move. Finally, Julian testified that his mother owned two furnished residences, worth a significant amount of money, but that she had failed to insure either of the structures. It is evident that the court relied on Julian’s testimony, and the court appointed evaluator, in imposing the conservatorship because the only other witness was a psychiatrist Mrs. Cash retained to provide an opposing opinion.

Is the Court appointed evaluator’s report subject to a hearsay objection?

In re Cash demonstrates the power of lay testimony. (Note 7). Under the evidence rules, unless otherwise limited by the evidence rules, every person is competent to be a witness. O.C.G.A. § 24-6-601. Lay witnesses may testify regarding facts and circumstances within their personal knowledge. O.C.G.A. § 24-6-602. In guardianship cases, lay witness testimony will be relevant concerning the ward’s background, observed changes in condition, observed ability or inability to carry out daily tasks, observed behavior, and information regarding relationships and family history. Lay witnesses may also authenticate documents, such as a power of attorney, advance directive or written designation selecting a guardian or conservator. (Note 8).

Lay witnesses should be prepared. Without proper instruction, they may get off-track, assuming that disagreements with the ward are relevant (value judgments), rather than the alleged ward’s ability or inability to make and communicate significant decisions. (Note 9). For example, in In re Hutcheson, supra, the alleged ward had an affair. Circumstances related to the affair may be relevant in illustrating erratic behavior, but value judgments on the affair are not relevant.

The GTLA Trial Practice Manual (Note 10) indicates that the following general instructions are appropriately given to any client or witness who will be testifying:

• You, as a client or witness in a lawsuit, have a very important job to do, since, in order for the fact finder to make a correct and wise decision, it must have all of the evidence put before it truthfully.
• You already know that you take an oath in court to tell nothing but the truth. But there are two ways to tell the truth: One is in a halting, stumbling, hesitant manner, which makes the fact finder doubt that you are telling all of the facts in a truthful way; the other is confident and straightforward, which makes the fact finder have more faith in what you are saying. You help yourself, the party you are testifying for, the judge, and the jury by giving your testimony in this last way.

In addition, the following suggestions are offered for witnesses:

• Visit the courtroom prior to the hearing.
• Dress appropriately for court.
• Don’t memorize what you are going to say.
• Assume you’re being watched at all times and act accordingly.
• Look at the fact finder when testifying and speak clearly.
• Listen to the questions, especially on cross examination; if you need to have the question repeated, then ask.
• Do not offer “snap” answers. Think first, then answer.
• Explain your answer if necessary.
• Answer directly and simply. Answer only the question asked, and then stop. Do not volunteer information not actually asked.
• If your answer was wrong or unclear, correct it immediately.
• If there is an objection, stop talking immediately and wait until the judge has ruled.
• Stick to the facts.
• Always be polite.
• Do not exaggerate.
• Do not argue with the other attorney.

In preparing the direct examination, the three cardinal rules in drafting a line of questions for witnesses: simplicity, brevity and preparation. (Note 11).  Complicated questions tend to confuse the issues. Once you have prepared your direct examination, sharing the essence of the guardianship process with the witness, as well as the direction questions may take will likely help the witness focus on relevant facts.

Witnesses are subject to cross examination. O.C.G.A. § 24-6-611(b). They should be instructed to tell the truth. They should answer the question that is asked, but are not required to volunteer information beyond the scope of the question and are not required to speculate. During cross examination, a witness may be impeached by disproving facts testified to by the witness. O.C.G.A. § 24-6-612. The state of a witness’s feelings toward the parties and the witness’s relationship to the parties may be proved for consideration by the fact finder. O.C.G.A. § 24-6-622. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations: (1) The evidence may refer only to character for truthfulness or untruthfulness; and (2) Evidence of truthful character shall be admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. O.C.G.A. § 24-6-608. Credibility of the witness is determined by the trier of fact. O.C.G.A. § 24-6-620.

If a witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences must be limited to those opinions or inferences which are: (1) Rationally based on the perception of the witness; (2) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and (3) Not based on scientific, technical, or other specialized knowledge appropriate for expert testimony. O.C.G.A. § 24-7-701.

The court may call witnesses, including experts, on its own motion and may interrogate them. O.C.G.A. § 24-6-614.

In a conservatorship or guardianship or protective proceeding, a court in this state may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. T.C.A. § 34-8-106(b).

Use of Expert Witnesses
Expert witnesses may be used where scientific, technical or other specialized knowledge would assist the finder of fact if (1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact. O.C.G.A. § 24-7-702(b). However, prior to testifying, on the motion of a party, the court may hold a hearing to determine whether the witness qualifies as an expert and whether the witness’s expert testimony satisfies the above requirements. O.C.G.A. § 24-7-702(d). Facts relied on by an expert need not be admissible if they are of a type reasonably relied upon by experts in the particular field of that expert. O.C.G.A. § 24-7-703. (Note 12). An opinion is not objectionable simply because it embraces the ultimate issue to be decided. O.C.G.A. § 24-7-704(a).

Expert testimony may be presented at trial, by deposition and, under certain circumstances, by affidavit or by reading from medical records. Testimony may be developed to support or defend a conservatorship. (Note 13).

When preparing for direct examination or cross examination, lawyers should be aware of the “rules” that apply to experts in developing their opinions. For example, an evaluator making a capacity decision should conduct a detailed interview, conduct neuropsychological testing, perform a functional ability assessment, and review the relevant legal standards. (Note 14). If an expert makes a diagnosis or offers an opinion, the expert’s profession or discipline likely has printed criteria associated with reaching that diagnosis or opinion. Ask the expert about the criteria and what facts, tests or other data support his or her opinion. (Note 15). An expert who fails to follow the standard applicable to his or her profession will lack credibility. His or her opinion may be discounted or disregarded. Thus, lawyers presenting expert testimony should ensure their experts follow the rules, and those opposing the use of an expert should test the expert’s methodology to determine whether there were any shortcomings.

Documents
Documents that may be relevant at trial include medical and mental health records, financial records, title documents, and other written information bearing on the issues at bar.

In Georgia, a medical narrative is not subject to a hearsay objection if the narrative has been signed and dated by an examining or treating licensed physician, dentist, orthodontist, podiatrist, physical or occupational therapist, doctor of chiropractic, psychologist, advanced practice registered nurse, social worker, professional counselor, or marriage and family therapist. It shall be admissible and received in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefor, by the person signing the report, the same as if that person were present at trial and testifying as a witness if an adverse party has given notice of an intent to introduce the narrative at least 60 days prior to trial. O.C.G.A. § 24-8-826.

Upon the trial of any civil proceeding involving injury or disease, the patient or the member of his or her family or other person responsible for the care of the patient shall be a competent witness to identify bills for expenses incurred in the treatment of the patient upon a showing by such a witness that the expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation at trial and that the bills were received from: (1) A hospital; (2) An ambulance service; (3) A pharmacy, drugstore, or supplier of therapeutic or orthopedic devices; or
(4) A licensed practicing physician, dentist, orthodontist, podiatrist, physical or occupational therapist, doctor of chiropractic, psychologist, advanced practice registered nurse, social worker, professional counselor, or marriage and family therapist. O.C.G.A. § 24-9-921(a).

Writings used to refresh recollection are available to opposing counsel; opposing counsel may introduce relevant portions in evidence. O.C.G.A. §24-6-612.

Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the best evidence rule. T.C.A. § 34-8-106(c). Similarly, the current Georgia evidence code, at O.C.G.A. § 24-9-922, provides that court (or other State documents) from outside Georgia may be admitted when certified. The revised evidence code, effective January 1, 2013, is more closely aligned with the Tennessee rule and provides: “By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Code section… Evidence that a document authorized by law to be recorded or filed and in fact recorded or filed in a public office or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.” O.C.G.A. § 24-9-901(b)(7); § 24-9-902 (documents under seal).

Admissibility, Objections and Foundation
All relevant evidence is admissible except as otherwise provided by law. O.C.G.A. § 24-4-402. The term “relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. O.C.G.A. § 24-4-401. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading to a jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. O.C.G.A. § 24-4-403.

Irrelevant evidence, or evidence which is prohibited, should not be admitted if a proper objection is made. (Note 16). In some cases, evidence is conditionally admissible and foundation must be laid. Foundation is required to authenticate evidence, to show its relevance and, in a conceptual sense to respond to objections.

Inadmissible evidence should be excluded; when it is offered, opposing counsel should object to its introduction. An objection does not preserve an issue for appeal unless properly made. (Note 17). Objections to the admission of evidence must be timely and must state the specific grounds for the objection. O.C.G.A. § 24-1-103(a)(1). (Note 18). An objection to a ruling excluding evidence must include an offer of proof. O.C.G.A. § 24-1-103(a)(2). Common objections include: (1) the question was ambiguous or unintelligible; (2) argumentative; (3) asked and answered; (4) assuming facts not in evidence; (5) beyond the scope (of direct or cross); (6) compound question; (7) calls for a conclusion; (8) immaterial; (9) incompetent; (10) irrelevant; (11) lack of personal knowledge; (12) leading; (13) narrative; and (14) nonresponsive. Trial practice handbooks are helpful in explaining the appropriate use and basis for each objection. (Note 19).

Certain communications are privileged such as (1) Communications between husband and wife; (2) Communications between attorney and client; (3) Communications between psychiatrist and patient; (4) Communications between licensed psychologist and patient (Note 20); (5) Communications between a licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, or licensed professional counselor and patient; (6) Communications between or among any psychiatrist, psychologist, licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, and licensed professional counselor who are rendering psychotherapy or have rendered psychotherapy to a patient, regarding that patient’s communications; and (7) Communications between accountant and client as provided by Code Section 43-3-32.

Evidence which requires authentication or identification is admissible if supported by a finding that the matter in question is what its proponent claims. O.C.G.A. § 24-9-901(a).

Hearsay is a common objection. “Hearsay” means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. O.C.G.A. § 24-8-801(d). (Note 21). An objection claiming evidence is hearsay should not be sustained if there is a proper exception to the rule prohibiting hearsay, or if the evidence is offered for a reason other than to prove the truth of the matter asserted. The following are, by definition, not subject to the hearsay rule: (1) prior inconsistent statements of witnesses; and (2) opposing party admissions. O.C.G.A. § 24-8-801(d). The following are exceptions to the hearsay rule: (1) present sense impressions; (2) excited utterances; (3) then existing mental, emotional or physical condition; (4) statements for the purpose of medical diagnosis; (5) recorded recollection; (6) records of regularly conducted activity; (7) the absence of a record of regularly conducted activity; (8) public records and reports; (9) records of vital statistics; (10) absence of a public record or entry; (11) Records of religious organizations; (12) Marriage, baptismal, and similar certificates; (13) Family records; (14) Records of documents affecting an interest in property; (15) Statements in documents affecting an interest in property; (16) Statements in ancient documents; (17) Market reports and commercial publications; (18) Learned treatises; (19) Reputation concerning personal or family history; (20) Reputation concerning boundaries or general history; (21) Reputation as to character; (22) Judgment of previous conviction; (23) Judgment as to personal, family, or general history or boundaries. O.C.G.A. § 24-8-803. Additional exceptions apply when the declarant is unavailable. For example, testimony given in a prior proceeding or in a deposition is admissible if there was an opportunity to develop testimony direct, cross or re-direct examination. O.C.G.A. § 24-8-804. Unlike the former rule in Georgia, hearsay is legal evidence and is admissible if no objection is made. O.C.G.A. § 24-8-802.

Preserving Issues for Appeal:

If something occurs at trial that should not, you must object on the record to preserve the issue for appeal. “Issues not raised in the trial court and ruled on by the trial court cannot be raised for the first time on appeal because generally they are deemed waived.” Frey v. State, 338 Ga. App. 583, 587 (3) (790 SE2d 835) (2016). Also, “[a] litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on  appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” See, e.g., Norman v. Ault, 287 Ga. 324, 329 (3) (695 SE2d 633) (2010).

Other standards of review are listed on the Court of Appeals website.

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Notes:

1.  C. Rose, The Informal Discovery Process, originally available online at http://beyondthebar.westlegaledcenter.com/legal-skills/trial-advocacy/informal-discovery-process/. (This link appears to have been removed and it not available at web.archive.org). In at least one instance, care should be taken to review local rules and precedent: ex parte interviews by opposing counsel with the ward’s treating physician.
2. Gerry Spence, Win Your Case, 86 (St. Martin’s Press 2005).
3. See How to tell a story: Quick-learn story-telling techniques, at http://www.youtube.com/watch?v=mOA8mUflH-Q.
4. http://www.wheelcouncil.org/storytellers.html.
5. http://www.lifehack.org/articles/lifehack/what-storytellers-can-teach-you-about-how-to-learn-faster.html.
6. Mrs. Cash argued on appeal that the decision below was premised on hearsay evidence and must be reversed. The court rejected that argument, presuming that the probate judge “sifted the wheat from the chaff and relied only on proper evidence in making its findings.”
7. The Groves court and In re L.M.R., supra, likewise confirm the value of lay testimony. “The medical and psychological testimony, coupled with lay testimony, paints a clear and compelling picture.” In re Groves, at 343.
8. In Yates v. Rathburn, 984 So.2d 1189 (Ala. App. 2007), lay testimony was presented regarding the ward’s condition and care, regarding powers of attorney, and regarding the ability of the nominated guardian to serve as such. On appeal, the probate court’s decision to appoint a guardian other than the ward’s husband was affirmed; in light of the evidence presented, it was not an abuse of discretion.
9. “An evaluation of decision-making capacity focuses chiefly on the process a person uses to make a decision and only secondarily on the decision itself.” In re Groves, at 336.
10. Trial Practice Manual, 3rd Ed. (GTLA 2000).
11. E.J. Imwinkelried, Evidentiary Foundations, § 1.02[2] (LexisNexis 2002).
12. In Kuelbs v. Hill, 2010 Ark. App. 427 (May 12, 2010), the trial court allowed testimony from an evaluating doctor who spoke with various family members and received, possibly relying on, prior medical documentation. The evaluator concluded that the ward was “belligerent, angry and beyond any degree of reason.” He diagnosed the ward with bipolar disorder, severe with psychotic features. The court’s refusal to strike the evaluator’s testimony was affirmed on appeal.
13. For example, in opposing evidence submitted by the court appointed evaluator, the respondent presented testimony from a psychiatrist/hospitalist in In re Hutcheson, 2009 Tenn. App. LEXIS 238 (April 13, 2009).
14. Moberg & Kniele, supra, at 110.
15. The expert’s entire file is typically discoverable. If an expert is deposed, the deposition notice should require the expert to bring his or her entire file, including everything that was relied on in reaching his or her opinions. When taking a discovery deposition, trial counsel should ask what opinions were reached, exhausting that line of questioning by asking “are there any other opinions” until the answer is no. For each opinion proffered, trial counsel should take the same tact in asking about each fact, test or other data which supports each opinion.
16. In Kortner v. Martise, 312 Conn. 1 (Conn. 2014), a jury verdict was reversed where a conservator, later replaced by a personal representative after the ward’s death, objected to evidence that sexual conduct was consensual in a civil sexual battery case. A letter defendant sought to admit was marked as an exhibit although there was a ruling that it was not admissible. The letter was not introduced as evidence or referred to by counsel for either party during the trial. When the exhibits were given to the jury, it was given to them by mistake. There was evidence the jury considered it when returning a verdict for the defendant; one juror mentioned being confused by it and the judge offered no explanation. The trial court denied plaintiff’s motion for new trial, finding the plaintiff waived any objection by reviewing exhibits prior to their submission to the jury. On appeal, that decision was reversed. Inadvertent error in failing to object to delivering a previously excluded document to the jury was not waiver. Because there was evidence that the ward had capacity to consent to sex, allowing the jury to consider the excluded letter constituted harm and a new trial should have been granted.
17. Where no objection is made, “[p]arties cannot use non-jurisdictional errors committed during trial as their ace-in-the-hole should the trial’s outcome not be to their liking.” In re Groves, supra, at 350. Rule 46 (O.C.G.A. § 9-11-46) indicates that formal objections to rulings or orders of the court are unnecessary. It is sufficient that a party, at the time of the ruling or order, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor.
18. The rules of evidence differ from State to State, including the appropriate manner of preserving an objection for appeal. One attorney suggests that a proper objection includes the following elements: (1) the objection must be timely; (2) must state the specific ground of inadmissibility; (3) must identify the party against whom it is inadmissible; (4) must identify the part of the evidence that is inadmissible; and (5) must object to the general unrestricted offer of evidence when it is admissible only for a limited purpose. R. Moses, Legal Objections Used in Courtroom Trials, http://criminaldefense.homestead.com/CondensedObjections.html. (When reviewed on July 17, 2021, it was noted that a password is required to view this page; the link used here is from a 2014 version on the web archive).
19. Ray Moses includes a list of 70 “basic generic objections” in Legal Objections Used in Courtroom Trials, supra. See also C. Montz, Trial Objections from Beginning to End: The Handbook for Civil and Criminal Trials, 29 Pepperdine L. R. 243 (2002), available at http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1321&context=plr.
20. In Cooksey v. Landry, 295 Ga. 430 (2014), in his dissent, Justice Benham noted that Georgia law does not provide for the appointment of a guardian to act on behalf of an incompetent patient to determine whether to involve or waive the psychiatrist-patient privilege.
21. In Shen v. Parkes, 100 So.3d 1189 (Fla. App. 2012), a trial court relied on written reports in a contested guardianship action where there was a hearsay objection. No testimony was offered and, as a result, the decision was reversed because it was based on inadmissible hearsay.