What is the Role of a Court Evaluator in a NYC Article 81 Guardianship Hearing?
The Court Evaluator plays an important role in an Article 81 Guardianship proceeding in NYC. The Court Evaluator is the eyes and ears of the Court. The role of the Court Evaluator is to read the petition, meet/speak with the parties, conduct a thorough investigation, render a report, with recommendations, to the Court, and appear at the return date to provide testimony for the hearing. The role of the Court Evaluator is more fully set out in MHL 81.09.
The Court Evaluator is appointed by the Court and has to act in a neutral capacity. When the Court receive the Petition and Order to Show Cause, the Court will review all of the documents and sign the Order to Show Cause. When signing the Order to Show Cause, the Court will specify the name, address, and phone number of the Court Evaluator. If you are preparing the Petition and the Order to Show Cause, please be sure to leave space for the names of the Court Evaluator and Court appointed Counsel. Click here for Sample Order to Show Cause.
The Court Evaluator must Review all Moving Papers
The Guardianship petition typically contains a fair amount of facts of the case. Pursuant to MHL 81.08, the Petition typically sets forth the name, age, address, and telephone number of the alleged incapacitated person (“AIP”), the contact information of the person with whom the AIP resides, a description of why the guardianship is being requested, the functional limitations of the AIP, the assets of the AIP, the AIP’s known family members, the powers being requested, the duration of the powers sought, any debts of the AIP, and the plan of care. If the AIP has been exploited, the petition will typically state who is exploiting the AIP. Armed with the information in the Petition, the Court Evaluator can then begin the investigation.
The Court Evaluator must Meet with the Parties
The Court Evaluator’s next step would then be to meet with the relevant parties to the proceeding. The parties are typically: 1) the petitioner; 2) the AIP, 3) the cross-petitioner, if any, 4) the AIP’s friends and family members, if known; and 5) anybody else that the Court Evaluator believes it necessary to speak with. (For example, the Court Evaluator can speak with other attorneys involved in related matters, adult protective services, the AIP’s physicians and psychiatrists (though there are limitations on what medical information the Court Evaluator can write in their report), and even the AIP’s home health aides, if any.)
The Court Evaluator must Conduct a Thorough Investigation
The Court Evaluator must obtain enough information to answer, to the extent possible, all of the questions set forth in MHL 81.09. Some of those questions are:
- Does the AIP person agree to the appointment of the proposed guardian and to the powers proposed for the guardian?
- Does the AIP want legal counsel?
- Can the AIP come to the courthouse for the hearing?
- Are available resources sufficient and reliable to provide for personal needs or property management without the appointment of a guardian?
- How is the AIP functioning with respect to the activities of daily living?
- What is the prognosis and reversibility of any physical and mental disabilities, alcoholism or substance dependence?
- What is the AIP’s understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living?
- What is the approximate value and nature of the financial resources of the AIP?
- What are the AIP’s preferences, wishes, and values with regard to managing the activities of daily living?
- Does the AIP have a Power of Attorney or a living will?
- What would be the least restrictive form of intervention consistent with the person’s functional level and the powers proposed for the guardian?
- What assistance is necessary for those who are financially dependent upon the AIP?
- Is the choice of proposed guardian appropriate?
- What steps has the proposed guardian taken or does the proposed guardian intend to take to identify and meet the current and emerging needs of the AIP
- What potential conflicts of interest, if any, exist between or among family members and/or other interested parties regarding the proposed guardian or the proposed relief?
- What potential conflicts of interest, if any, exist involving the AIP, the petitioner, and the proposed guardian?
- Ae there any additional persons who should be given notice and an opportunity to be heard?
The Court Evaluator must Render a Report with Recommendations, to the Court
The next step is for the Court Evaluator to prepare a report. The reports are typically due two days before the hearing. Typically the Evaluator should provide the report only to the Court, and, upon receiving Court approval, may disseminate the report to the rest of the parties. Often time the Court Evaluator will distribute the report to all parties in advance of the hearing. If the hearing is contested, however, then the Court Evaluator is more likely to simply provide the report to the Court for its eyes only. The report will typically recite the facts, state, with neutrality the observations and conversations had, provide the answers to the questions raised in MHL 81.09, and provide recommendations to the Court. The recommendations are typically who should be the guardian, whether any investigations need to be conducted, whether there should be any limitations on the
The Evaluator must Appear and Testify at the Hearing
After the report has been submitted, the parties will then appear at the return date of the Order to Show Cause for a hearing on the merits of the case. The Court Evaluator will be asked to testify and state his findings in the narrative. The Evaluator will typically take the witness stand, be sworn in, and state, under oath his findings and results of his investigation. The Petitioner, Cross-Petitioner, if any, and the AIP’s (or their counsel) can ask questions. Once the Court Evaluator testifies, the Court will usually take the Court Evaluator’s report in as evidence. If the Court determines that the Court Evaluator’s report or testimony is not sufficiently credible, then pursuant to Mental Hygiene Law 81.12(b), the Court may order that the parties who gave information to the Court Evaluator, themselves, come to Court and testify.
The Evaluator Gets Paid for Their Services.
The Evaluator is entitled to a fee for their services. The fee is based upon the number of hours worked on this particular guardianship. Typically the fee is paid out of the Guardianship estate. When the guardianship estate does not have any money, the Court may ask that the Petitioner bear the costs of the proceeding. When the guardianship is brought by the Department of Social Services, the City will typically pay the Court Evaluator a flat fee of $750. If the Court Evaluator indicates that he has performed extraordinary work, then the Court Evaluator can request from the City that he be paid up to $1,500. This should be negotiated with City in advance. When the Petitioner is a Hospital or Nursing home, often times they will pay the fee of the Court Evaluator.
We have served as Court Evaluator, cross-examined Court Evaluators, and understand the role of a Court Evaluators. We also have extensive experience with Guardianship proceedings (both contested and uncontested). Please feel free to contact us for your legal needs.
For more information, please contact Estate Litigation, Guardianship, Probate and Estate Planning attorney Regina Kiperman:
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New York, NY 10005
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