N.Y. MHY Law § 81.09 — New York Code / Act MHY / Title E / Article 81 / Section 81.09
Appointment of court evaluator
Status: in_force

§ 81.09 Appointment of court evaluator.\n  (a) At the time of the issuance of the order to show cause, the court\nshall appoint a court evaluator.\n  (b) 1. the court may appoint as court evaluator any person including,\nbut not limited to, the mental hygiene legal service in the judicial\ndepartment where the person resides, a not-for-profit corporation, an\nattorney-at-law, physician, psychologist, accountant, social worker, or\nnurse, with knowledge of property management, personal care skills, the\nproblems associated with disabilities, and the private and public\nresources available for the type of limitations the person is alleged to\nhave. The name of the court evaluator shall be drawn from a list\nmaintained by the office of court administration;\n  2. if the court appoints the mental hygiene legal service as the\nevaluator and upon investigation in accordance with section 81.10 of\nthis article it appears to the mental hygiene legal service that the\nmental hygiene legal service represents the person alleged to be\nincapacitated as counsel, or that counsel should otherwise be appointed\nin accordance with section 81.10 of this article for the person alleged\nto be incapacitated, the mental hygiene legal service shall so report to\nthe court. The mental hygiene legal service shall be relieved of its\nappointment as court evaluator whenever the mental hygiene legal service\nrepresents as counsel, or is assigned to represent as counsel, the\nperson alleged to be incapacitated.\n  (c) The duties of the court evaluator shall include the following:\n  1. meeting, interviewing, and consulting with the person alleged to be\nincapacitated regarding the proceeding.\n  2. determining whether the alleged incapacitated person understands\nEnglish or only another language, and explaining to the person alleged\nto be incapacitated, in a manner which the person can reasonably be\nexpected to understand, the nature and possible consequences of the\nproceeding, the general powers and duties of a guardian, available\nresources, and the rights to which the person is entitled, including the\nright to counsel.\n  3. determining whether the person alleged to be incapacitated wishes\nlegal counsel of his or her own choice to be appointed and otherwise\nevaluating whether legal counsel should be appointed in accordance with\nsection 81.10 of this article.\n  4. interviewing the petitioner, or, if the petitioner is a facility or\ngovernment agency, a person within the facility or agency fully familiar\nwith the person's condition, affairs and situation.\n  5. investigating and making a written report and recommendations to\nthe court; the report and recommendations shall include the court\nevaluator's personal observations as to the person alleged to be\nincapacitated and his or her condition, affairs and situation, as well\nas information in response to the following questions:\n  (i) does the person alleged to be incapacitated agree to the\nappointment of the proposed guardian and to the powers proposed for the\nguardian;\n  (ii) does the person wish legal counsel of his or her own choice to be\nappointed or is the appointment of counsel in accordance with section\n81.10 of this article otherwise appropriate;\n  (iii) can the person alleged to be incapacitated come to the\ncourthouse for the hearing;\n  (iv) if the person alleged to be incapacitated cannot come to the\ncourthouse, is the person completely unable to participate in the\nhearing;\n  (v) if the person alleged to be incapacitated cannot come to the\ncourthouse, would any meaningful participation result from the person's\npresence at the hearing;\n  (vi) are available resources sufficient and reliable to provide for\npersonal needs or property management without the appointment of a\nguardian;\n  (vii) how is the person alleged to be incapacitated functioning with\nrespect to the activities of daily living and what is the prognosis and\nreversibility of any physical and mental disabilities, alcoholism or\nsubstance dependence? The response to this question shall be based on\nthe evaluator's own assessment of the person alleged to be incapacitated\nto the extent possible, and where necessary, on the examination of\nassessments by third parties, including records of medical,\npsychological and/or psychiatric examinations obtained pursuant to\nsubdivision (d) of this section. As part of this review, the court\nevaluator shall consider the diagnostic and assessment procedures used\nto determine the prognosis and reversibility of any disability and the\nnecessity, efficacy, and dose of each prescribed medication;\n  (viii) what is the person's understanding and appreciation of the\nnature and consequences of any inability to manage the activities of\ndaily living;\n  (ix) what is the approximate value and nature of the financial\nresources of the person alleged to be incapacitated;\n  (x) what are the person's preferences, wishes, and values with regard\nto managing the activities of daily living;\n  (xi) has the person alleged to be incapacitated made any appointment\nor delegation pursuant to section 5-1501, 5-1505, or 5-1506 of the\ngeneral obligations law, section two thousand nine hundred sixty-five or\ntwo thousand nine hundred eighty-one of the public health law, or a\nliving will;\n  (xii) what would be the least restrictive form of intervention\nconsistent with the person's functional level and the powers proposed\nfor the guardian;\n  (xiii) what assistance is necessary for those who are financially\ndependent upon the person alleged to be incapacitated;\n  (xiv) is the choice of proposed guardian appropriate, including a\nguardian nominated by the allegedly incapacitated person pursuant to\nsection 81.17 or subdivision (c) of section 81.19 of this article; and\nwhat steps has the proposed guardian taken or does the proposed guardian\nintend to take to identify and meet the current and emerging needs of\nthe person alleged to be incapacitated unless that information has been\nprovided to the court by the local department of social services when\nthe proposed guardian is a community guardian program operating pursuant\nto the provisions of title three of article nine-B of the social\nservices law;\n  (xv) what potential conflicts of interest, if any, exist between or\namong family members and/or other interested parties regarding the\nproposed guardian or the proposed relief;\n  (xvi) what potential conflicts of interest, if any, exist involving\nthe person alleged to be incapacitated, the petitioner, and the proposed\nguardian; and\n  (xvii) are there any additional persons who should be given notice and\nan opportunity to be heard.\n  In addition, the report and recommendations shall include any\ninformation required under subdivision (e) of this section, and any\nadditional information required by the court.\n  6. interviewing or consulting with professionals having specialized\nknowledge in the area of the person's alleged incapacity including but\nnot limited to developmental disabilities, alcohol and substance abuse,\nand geriatrics.\n  7. retaining an independent medical expert where the court finds it is\nappropriate, the cost of which is to be charged to the estate of the\nallegedly incapacitated person unless the person is indigent.\n  8. conducting any other investigations or making recommendations with\nrespect to other subjects as the court deems appropriate.\n  9. attending all court proceedings and conferences.\n  (d) The court evaluator may apply to the court for permission to\ninspect records of medical, psychological and/or psychiatric\nexaminations of the person alleged to be incapacitated; except as\notherwise provided by federal or state law, if the court determines that\nsuch records are likely to contain information which will assist the\ncourt evaluator in completing his or her report to the court, the court\nmay order the disclosure of such records to the court evaluator,\nnotwithstanding the physician/patient privilege, the\npsychologist/patient privilege, or the social worker/client privilege as\nset forth in sections four thousand five hundred four, four thousand\nfive hundred seven, and four thousand five hundred eight of the civil\npractice law and rules; if the court orders that such records be\ndisclosed to the court evaluator, the court may, upon the court's own\nmotion, at the request of the court evaluator, or upon the application\nof counsel for the person alleged to be incapacitated, or the\npetitioner, also direct such further disclosure of such records as the\ncourt deems proper.\n  (e) The court evaluator shall have the authority to take the steps\nnecessary to preserve the property of the person alleged to be\nincapacitated pending the hearing in the event the property is in danger\nof waste, misappropriation, or loss; if the court evaluator exercises\nauthority under this subdivision, the court evaluator shall immediately\nadvise the court of the actions taken and include in his or her report\nto the court an explanation of the actions the court evaluator has taken\nand the reasons for such actions.\n  (f) When judgment grants a petition, the court may award a reasonable\ncompensation to a court evaluator, including the mental hygiene legal\nservice, payable by the estate of the allegedly incapacitated person.\nWhen a judgment denies or dismisses a petition, the court may award a\nreasonable allowance to a court evaluator, including the mental hygiene\nlegal service, payable by the petitioner or by the person alleged to be\nincapacitated, or both in such proportions as the court may deem just.\nWhen the person alleged to be incapacitated dies before the\ndetermination is made in the proceeding, the court may award a\nreasonable allowance to a court evaluator, payable by the petitioner or\nby the estate of the decedent, or by both in such proportions as the\ncourt may deem just.\n