The Court Evaluator In New York Guardianship Cases
When a petition is filed with the Guardianship Court to commence a Guardianship proceeding, the Court will sign an Order to Show Cause. The form of this Order is set forth in New York Mental Hygiene Law (MHL) Section 81.07. Among the many items of information that are contained in the Order such as the time and place of the Guardianship Hearing, the Court will also typically appoint and name a Court Evaluator. As stated in MHL Section 81.07 part of the language in the Order advises the Alleged Incapacitated Person (“AIP”) that the “Court has appointed a court evaluator to explain this proceeding to you and investigate the claims made in the application.”
MHL Section 81.09 provides the details regarding the appointment of a Court Evaluator. The role of the Evaluator is sometimes misunderstood. The Evaluator does not represent any party in the manner an attorney would although the Court Evaluator is very often an attorney. The Evaluator is a Court appointee whose task is to investigate and review the different aspects and details regarding the Guardianship application and then make a written report along with recommendations to the Court. MHL 81.09(c) sets forth nine (9) areas or items that are the duties that the Evaluator must fulfill. Among other things the Evaluator will meet with the AIP as well as all other necessary persons in the case and attend all of the Court proceedings. I have served as a Court Evaluator in many cases.
The role of the Court Evaluator is very important because he actually serves as the eyes and ears of the Court regarding a thorough review of the details in the case. While the Guardianship Judge is not bound by the recommendations of the Evaluator, most Courts give great consideration to the Court Evaluator’s suggestions. This is so because the Evaluator has typically taken a close look at the circumstances of the case. Sometimes the Evaluator may report that the AIP is not incapacitated and does not need a Guardian. In other situations, the Evaluator may recommend that someone other than the petitioner be appointed as Personal Needs or Property Management Guardian.
MHL 81.09 also provides that the Court may direct the Court Evaluator be paid a fee for their services. Typically, this fee is paid from the AIP’s funds. However, when the Court does not appoint a Guardian, the Judge may direct that the fee be paid by the petitioner.
Another important function of the Evaluator is to determine whether the AIP wants to have attorney representation. MHL Section 81.09 makes reference to MHL Section 81.10 which provides additional guidance regarding the appointment of legal counsel for the AIP. Under this section the Court must appoint an attorney to represent the AIP if the AIP requests such representation or if the AIP opposes the appointment of a Guardian or other type of relief.
Contested Guardianship cases can be complicated and often involve issues of intra-family disputes regarding the AIP’s assets and appropriate care. If you have any questions or issues regarding a Guardianship matter, call me for a free review. I can be reached at (212) 355-2575 or email.