N.Y. Mental Hygiene Law § 81.09: Appointment of court evaluator

§ 81.09 Appointment of court evaluator.

(a) At the time of the issuance of the order to show cause, the court

shall appoint a court evaluator.

(b) 1. the court may appoint as court evaluator any person including,

but not limited to, the mental hygiene legal service in the judicial

department where the person resides, a not-for-profit corporation, an

attorney-at-law, physician, psychologist, accountant, social worker, or

nurse, with knowledge of property management, personal care skills, the

problems associated with disabilities, and the private and public

resources available for the type of limitations the person is alleged to

have. The name of the court evaluator shall be drawn from a list

maintained by the office of court administration;

2. if the court appoints the mental hygiene legal service as the

evaluator and upon investigation in accordance with section 81.10 of

this article it appears to the mental hygiene legal service that the

mental hygiene legal service represents the person alleged to be

incapacitated as counsel, or that counsel should otherwise be appointed

in accordance with section 81.10 of this article for the person alleged

to be incapacitated, the mental hygiene legal service shall so report to

the court. The mental hygiene legal service shall be relieved of its

appointment as court evaluator whenever the mental hygiene legal service

represents as counsel, or is assigned to represent as counsel, the

person alleged to be incapacitated.

(c) The duties of the court evaluator shall include the following:

1. meeting, interviewing, and consulting with the person alleged to be

incapacitated regarding the proceeding.

2. determining whether the alleged incapacitated person understands

English or only another language, and explaining to the person alleged

to be incapacitated, in a manner which the person can reasonably be

expected to understand, the nature and possible consequences of the

proceeding, the general powers and duties of a guardian, available

resources, and the rights to which the person is entitled, including the

right to counsel.

3. determining whether the person alleged to be incapacitated wishes

legal counsel of his or her own choice to be appointed and otherwise

evaluating whether legal counsel should be appointed in accordance with

section 81.10 of this article.

4. interviewing the petitioner, or, if the petitioner is a facility or

government agency, a person within the facility or agency fully familiar

with the person's condition, affairs and situation.

5. investigating and making a written report and recommendations to

the court; the report and recommendations shall include the court

evaluator's personal observations as to the person alleged to be

incapacitated and his or her condition, affairs and situation, as well

as information in response to the following questions:

(i) does the person alleged to be incapacitated agree to the

appointment of the proposed guardian and to the powers proposed for the

guardian;

(ii) does the person wish legal counsel of his or her own choice to be

appointed or is the appointment of counsel in accordance with section

81.10 of this article otherwise appropriate;

(iii) can the person alleged to be incapacitated come to the

courthouse for the hearing;

(iv) if the person alleged to be incapacitated cannot come to the

courthouse, is the person completely unable to participate in the

hearing;

(v) if the person alleged to be incapacitated cannot come to the

courthouse, would any meaningful participation result from the person's

presence at the hearing;

(vi) are available resources sufficient and reliable to provide for

personal needs or property management without the appointment of a

guardian;

(vii) how is the person alleged to be incapacitated functioning with

respect to the activities of daily living and what is the prognosis and

reversibility of any physical and mental disabilities, alcoholism or

substance dependence? The response to this question shall be based on

the evaluator's own assessment of the person alleged to be incapacitated

to the extent possible, and where necessary, on the examination of

assessments by third parties, including records of medical,

psychological and/or psychiatric examinations obtained pursuant to

subdivision (d) of this section. As part of this review, the court

evaluator shall consider the diagnostic and assessment procedures used

to determine the prognosis and reversibility of any disability and the

necessity, efficacy, and dose of each prescribed medication;

(viii) what is the person's understanding and appreciation of the

nature and consequences of any inability to manage the activities of

daily living;

(ix) what is the approximate value and nature of the financial

resources of the person alleged to be incapacitated;

(x) what are the person's preferences, wishes, and values with regard

to managing the activities of daily living;

(xi) has the person alleged to be incapacitated made any appointment

or delegation pursuant to section 5-1501, 5-1505, or 5-1506 of the

general obligations law, section two thousand nine hundred sixty-five or

two thousand nine hundred eighty-one of the public health law, or a

living will;

(xii) what would be the least restrictive form of intervention

consistent with the person's functional level and the powers proposed

for the guardian;

(xiii) what assistance is necessary for those who are financially

dependent upon the person alleged to be incapacitated;

(xiv) is the choice of proposed guardian appropriate, including a

guardian nominated by the allegedly incapacitated person pursuant to

section 81.17 or subdivision (c) of section 81.19 of this article; and

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 person alleged to be incapacitated unless that information has been

provided to the court by the local department of social services when

the proposed guardian is a community guardian program operating pursuant

to the provisions of title three of article nine-B of the social

services law;

(xv) 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;

(xvi) what potential conflicts of interest, if any, exist involving

the person alleged to be incapacitated, the petitioner, and the proposed

guardian; and

(xvii) are there any additional persons who should be given notice and

an opportunity to be heard.

In addition, the report and recommendations shall include any

information required under subdivision (e) of this section, and any

additional information required by the court.

6. interviewing or consulting with professionals having specialized

knowledge in the area of the person's alleged incapacity including but

not limited to developmental disabilities, alcohol and substance abuse,

and geriatrics.

7. retaining an independent medical expert where the court finds it is

appropriate, the cost of which is to be charged to the estate of the

allegedly incapacitated person unless the person is indigent.

8. conducting any other investigations or making recommendations with

respect to other subjects as the court deems appropriate.

9. attending all court proceedings and conferences.

(d) The court evaluator may apply to the court for permission to

inspect records of medical, psychological and/or psychiatric

examinations of the person alleged to be incapacitated; except as

otherwise provided by federal or state law, if the court determines that

such records are likely to contain information which will assist the

court evaluator in completing his or her report to the court, the court

may order the disclosure of such records to the court evaluator,

notwithstanding the physician/patient privilege, the

psychologist/patient privilege, or the social worker/client privilege as

set forth in sections four thousand five hundred four, four thousand

five hundred seven, and four thousand five hundred eight of the civil

practice law and rules; if the court orders that such records be

disclosed to the court evaluator, the court may, upon the court's own

motion, at the request of the court evaluator, or upon the application

of counsel for the person alleged to be incapacitated, or the

petitioner, also direct such further disclosure of such records as the

court deems proper.

(e) The court evaluator shall have the authority to take the steps

necessary to preserve the property of the person alleged to be

incapacitated pending the hearing in the event the property is in danger

of waste, misappropriation, or loss; if the court evaluator exercises

authority under this subdivision, the court evaluator shall immediately

advise the court of the actions taken and include in his or her report

to the court an explanation of the actions the court evaluator has taken

and the reasons for such actions.

(f) When judgment grants a petition, the court may award a reasonable

compensation to a court evaluator, including the mental hygiene legal

service, payable by the estate of the allegedly incapacitated person.

When a judgment denies or dismisses a petition, the court may award a

reasonable allowance to a court evaluator, including the mental hygiene

legal service, payable by the petitioner or by the person alleged to be

incapacitated, or both in such proportions as the court may deem just.

When the person alleged to be incapacitated dies before the

determination is made in the proceeding, the court may award a

reasonable allowance to a court evaluator, payable by the petitioner or

by the estate of the decedent, or by both in such proportions as the

court may deem just.