Court Evaluator and Counsel to the AIP in New York Article 81 Guardianship
Appoint of Court Evaluator and Counsel upon Signing of Order to Show Cause in an New York Article 81 Guardianship Proceeding.
In order to initiate a guardianship proceeding for someone who may be incapacitated or in need of assistance with their personal needs or property management, an Order to Show Cause and Petition are filed. When the Order to Show Cause is signed, the Court will almost always, with only slight exceptions, appoint a Court Evaluator. In addition, sometimes the Court will also appoint an attorney for the alleged incapacitated person (AIP).
In some counties, the Court always appoints both at the outset, through the Order to Show Cause.
In other counties, the Court will only appoint counsel, if there is a request for temporary relief which is granted, or upon the request or recommendation of the Court Evaluator. Although there may be some overlap between the role of Court Evaluator and Counsel to the AIP, these two roles of Court Evaluator and Counsel are technically two distinct roles and should be treated that way. So what is the actual role of Court Evaluator and Counsel? Let’s dive in and find out.
What is the role of a Court Evaluator in New York Article 81 Guardianship?
As previously discussed, the Court Evaluator is appointed to be the eyes and ears of the Court. The Court Evaluator, appointed pursuant to Mental Hygiene Law (“MHL”) §81.09 is a neutral party, an extension of the Court. He or she is first and foremost tasked with determining whether the Court has jurisdiction to hear this matter, pursuant to MHL §81.04, whether the venue is appropriate, pursuant to MHL §81.05, and whether the Petitioner has standing to commence this proceeding pursuant to MHL §81.06.
Once the Court evaluator determines that this proceeding is properly before the Court, he or she has to investigating the allegations in the petition to see whether the AIP is in fact incapacitated as required by MHL §81.02. (At times there may be a need for a guardian but the AIP has some capacity in which case the Court Evaluator must determine whether the AIP will consent to the appointment of a guardian.
If the Court Evaluator feels that the AIP does in fact lack capacity and is in need of assistance, then the Court Evaluator will continue to investigate to help determine who the appropriate person is to be appointed as Guardian. This may be the petitioner, or the cross-petitioner, when applicable, or might even be someone entirely else. This someone entirely else may be another interested person or may be an independent person.
The Court Evaluator will want to speak with the AIP, speak with family members, friends and neighbors of the AIP and at times may need to review financial documentation of the AIP. At times, the Court Evaluator has to become a detective and private investigator. The Court Evaluator writes up a report of his/her findings and recommendations and submits it to the Court. While the Court will still hold a hearing, and the recommendation of the Court Evaluator is not set in stone, it will definitely be persuasive to the Judge and hold weight.
What is the role of a Court Appointed Attorney?
The Court Appointed Counsel, appointed for the AIP, pursuant to MHL §81.10, is appointed to serve as the AIP’s own attorney. The Court Appointed Counsel is not neutral. He or she is appointed to protect the AIP’s rights and to represent the AIP and to advocate for the AIP and what the AIP wants, if the AIP is able to voice their position.
If the AIP voices an opinion or position about whether he or she wants or does not want a guardian, or who he or she wants or does not want to be his or her guardian, the role of the attorney is to advocate that position, regardless of whether the attorney personally agrees with that position. (Remember: even if the AIP is determined to lack capacity, they still are entitled to have their preferences known about who they want to serve as their guardian.)
Further, while the attorney needs to make sure that the AIP’s best interests are at the forefront, unlike the Court Evaluator the attorney is not required to carry on a full investigation and does not need to speak to all the people that the Court Evaluator does, unless relevant to his or her advocacy.
What is the Difference between Court Evaluator and Counsel to the AIP?
Here is a convenience table:
|Task||Court Evaluator||Counsel to the AIP|
|Confirm Standing to Commence Petition||✅||✅|
|Analyze whether the AIP understands what is going on||✅||✅|
|Analyze the best interests of the AIP||✅||✅|
|Visit the AIP||✅||✅|
|Analyze whether the AIP has capacity to consent to a guardian||✅||✅|
|Render report of Findings||✅||🅇|
|Waive the appearance of the AIP||🅇||✅|
|Maintains a Neutral Position||✅||🅇|
|Advocates for the AIP’s needs||🅇||✅|
|Make recommendations to the Court||✅||🅇|
|Can create legal documents for the AIP if the AIP has capacity||🅇||✅|
|Testifies at the New York Article 81 Guardianship Hearing||✅||🅇|
As Court appointees, both Court Evaluator and Counsel to the AIP maintain a relatively closer relationship than the other parties. Both the Court Evaluator and Counsel to the AIP are there to protect the AIP albeit in different ways.
We can help you understand the difference between the various roles of the parties to a hearing and navigate the Article 81 Guardianship process.
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