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This entry was published on 2014-09-22
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Proceedings to discover property withheld
Mental Hygiene (MHY) CHAPTER 27, TITLE E, ARTICLE 81
§ 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.